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, are not "so rigid" as to create a structure that immunizes students from discipline. They establish a duty (parents must cause attendance) and they list excuses (alternative private instruction, illness, etc.). 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.
That left a practical question Janklow did not directly resolve: what happens to the parents' compulsory attendance obligation when the board suspends the student? Read together, the most sensible reading is that the parent's duty to cause attendance becomes a duty to cooperate with the school's discipline framework, and the student during a suspension period is treated as outside the school's normal "membership" status temporarily. A 1970s opinion related to this distinction (id=425 in this corpus) addressed the membership-versus-attendance line in more detail.
Currency note
This opinion was issued during AG William Janklow's tenure (1975-1979). Subsequent statutory amendments, court decisions, and procedural due process developments have changed the school discipline framework. Treat this page as historical context, not current legal advice. SDCL 13-32-4 and the compulsory attendance statutes have been amended multiple times. 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. The federal due process framework for school discipline has also evolved substantially since the 1970s (notably under Goss v. Lopez, 419 U.S. 565 (1975)).
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 in 1976?
A: The 1975 Goss v. Lopez decision had established that students facing suspension have due process rights including notice of the charges and an opportunity to respond. SDCL 13-32-4 referenced State Board of Education hearing rules that operationalized those federal requirements. The specifics depended on the district's policies and the rules in effect.
Q: What is "insubordination"?
A: The statute did not define the term. Generally, it meant willful defiance of school authorities, refusal to obey reasonable orders, or persistent disruption of school operations. The board had to decide on the facts whether the student's conduct rose to the level of "insubordinate or habitually disobedient."
Q: What happened to the parents' compulsory attendance obligation?
A: The opinion did not directly resolve this. The most sensible reading is that during a suspension period the student is excluded from school by the board's lawful action, so the parents are not in violation of the compulsory attendance statutes for that period. The parents' duty is to cause attendance "during the school term" subject to lawful excuses; a lawful suspension creates a lawful absence.
Q: Could the school board expel a special education student?
A: The opinion did not address this. By 1976 the federal Education for All Handicapped Children Act (now IDEA) had been enacted, with specific protections for students with disabilities in discipline contexts. Modern questions about special education discipline involve significant additional federal-law requirements.
Q: Could a student appeal an expulsion?
A: Yes, through the due process hearing process. The State Board of Education's rules set the procedures. Beyond the administrative process, students could pursue judicial review of board decisions if they believed the proceedings violated due process or were arbitrary.
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.
The 1975 Goss v. Lopez federal decision was the backdrop for the procedural due process framework SDCL 13-32-4 references. The State Board of Education had begun rulemaking to operationalize Goss in South Dakota schools. Janklow's opinion was consistent with the constitutional framework: discipline yes, with due process.
The "habitually disobedient" alternative ground for discipline in SDCL 13-32-4 catches 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
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