South Dakota's compulsory attendance statutes (SDCL 13-27-1 through 13-27-6) require children of compulsory school age to attend school. SDCL 13-32-4 lets a school board suspend or expel insubordinate students. Can the board actually use that suspension power against a compulsory-age student, or do the compulsory attendance statutes block it?

Plain-English summary

A common puzzle for school boards in the 1970s was the tension between two statutory directives. SDCL 13-27-1 through 13-27-6 required parents to have their children regularly attend school during compulsory attendance ages. SDCL 13-32-4 let school boards suspend or expel students who were "insubordinate or habitually disobedient." If both statutes applied, could a board really suspend a compulsory-age student? Did the compulsory attendance command somehow override the discipline statute?

AG Janklow's answer was no, the compulsory attendance statutes do not create disciplinary immunity. SDCL 13-32-4 directly authorizes suspension and expulsion of insubordinate students, and the legislature did not exclude compulsory-age students from that authority.

The mechanics of SDCL 13-32-4 were spelled out in the opinion. The school board can suspend or expel; the person in charge of the school (principal, superintendent) can temporarily suspend. Expulsion cannot extend beyond the end of the current school year. The State Board of Education was authorized to set rules for hearing procedures to protect students' rights, and school districts had to provide procedural due process hearings when suspension or expulsion extended into the fourth school day. Discipline could happen, but it had to come with due process.

The compulsory attendance statutes, Janklow explained, do not "create such a rigid structure that a student who is covered by compulsory attendance is immune from discipline under SDCL 13-32-4." They establish a duty (parents must cause attendance) and they list excuses. Nothing in their text says compulsory-age students cannot be disciplined. The two statutes operate on different planes: the compulsory attendance statutes set baseline attendance obligations; the discipline statute sets consequences for misconduct.

Currency note

This opinion was issued in 1976. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL 13-32-4 and the compulsory attendance statutes may have been amended since this opinion, and the federal and state due process framework for school discipline has continued to develop. Modern questions about student suspension and expulsion procedures, due process hearing requirements, and the boundary between school discipline and compulsory attendance should be verified against current SDCL chapters 13-32 and 13-27 and any applicable Department of Education rules.

What the opinion meant at the time

For school boards, the opinion confirmed that they had real disciplinary authority over compulsory-age students. The compulsory attendance statutes did not turn into a shield against discipline. A board could suspend or expel, subject to due process.

For school administrators, the opinion preserved the day-to-day disciplinary structure. Principals could temporarily suspend; the State Board of Education's hearing rules kicked in when discipline extended past three school days; expulsion was capped at the end of the current school year.

For parents of compulsory-age students who got suspended, the practical message was that their compulsory attendance obligation did not give them a right to insist the school continue educating their child during the discipline period. They had a procedural due process right to challenge the discipline, but not a substantive immunity.

For students, the opinion confirmed that the school's discipline rules applied to them regardless of their compulsory attendance status. Being "required to attend" school did not mean "exempt from school discipline."

Common questions

Q: How long could a board suspend a student?
A: SDCL 13-32-4 capped expulsion at the end of the current school year. Within that limit, the board could set the duration. Temporary suspension by the principal was authorized for shorter durations; once the suspension extended into the fourth school day, due process hearings under State Board of Education rules were triggered.

Q: What did "due process" require under this opinion?
A: The opinion did not spell out the specifics. SDCL 13-32-4 authorized the State Board of Education to set hearing rules for the protection of students' rights and required districts to provide procedural due process hearings once a suspension or expulsion extended into the fourth school day. The details lived in those State Board rules and the district's own policies, not in this opinion.

Q: What is "insubordination"?
A: The statute did not define the term. The opinion left it to the local board, which had to decide on the facts whether a student's conduct rose to the level of "insubordinate or habitually disobedient."

Q: What happened to the parents' compulsory attendance obligation when a student was suspended?
A: The opinion did not address this. Janklow resolved only the narrow question put to him: that the compulsory attendance statutes do not immunize a student from discipline under SDCL 13-32-4.

Q: Could a student appeal an expulsion?
A: SDCL 13-32-4 required districts to provide procedural due process hearings under State Board of Education rules. The opinion did not describe any further appeal beyond those hearing procedures.

Background and statutory framework

South Dakota's school discipline regime had two parallel tracks in the 1970s. SDCL 13-27-1 through 13-27-6 set the baseline attendance obligation: parents had to cause compulsory-age children to attend school. SDCL 13-32-4 set the consequences for student misconduct: suspension or expulsion for insubordination, with due process.

The opinion question reflects a recurring confusion: parents and sometimes students themselves argued that compulsory attendance required the school to keep teaching them, regardless of behavior. Janklow rejected this reading. The compulsory attendance statutes set parental duties, not student rights. The student's right to attend the school continues only as long as the student complies with the school's reasonable rules.

SDCL 13-32-4 itself built in procedural protection: it authorized the State Board of Education to set hearing rules and required districts to provide due process hearings once discipline extended into the fourth school day. Janklow's opinion tracked that text: discipline yes, with due process.

The "habitually disobedient" alternative ground for discipline in SDCL 13-32-4 reaches the recurring-low-level-misconduct case that might not rise to a single act of insubordination but adds up to a disruptive pattern. Boards had discretion to interpret both grounds.

Citations and references

Statutes:

• SDCL 13-32-4 (school board suspension/expulsion authority)
• SDCL 13-27-1 through 13-27-6 (compulsory attendance and excuses)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1290

Original opinion text

Expulsion of minor child for insubordination

Dear Mr. Casey:

You have requested an official opinion from this office as to the following question:

QUESTION:

May a board of education suspend from enrollment in a public school a minor child of compulsory school attendance age on the grounds of insubordination under authority of SDCL 13-24-4, in light of the compulsory school attendance statutes of this state, particularly SDCL 13-27-1 through 13-27-6?

SDCL 13-32-4 provides:

The school board of every school district shall assist and co-operate with the teacher in the government and discipline of the schools. The board may suspend or expel from school any pupils insubordinate or habitually disobedient, and the person in charge of the school may temporarily suspend any such pupils. Such expulsion shall not extend beyond the end of the current school year. The state board of education is authorized to establish rules for hearing procedures for the protection of students' rights. Each school district board shall provide procedural due process hearings for students in accordance with such rules when the suspension or expulsion of a student extends into the fourth school day.

In my view, the above-cited statute is quite clear; the Legislature has authorized school boards to suspend or expel an insubordinate student, even though that student might be a student covered by the compulsory attendance statutes which you refer to. Discipline in public schools is a matter which is generally left to the teachers, local administrators, and local school boards. If, in their view, a suspension is appropriate for an insubordinate student after being given his due process, it is my opinion that the Legislature has authorized this to be done. SDCL 13-27-1 through 13-27-6 do not create such a rigid structure that a student who is covered by compulsory attendance is immune from discipline under SDCL 13-32-4.

Respectfully submitted,

William J. Janklow

Attorney General

WJJ:DOC:jo