The Swier Law Firm Education Law FAQs

Swier Law Firm FAQ


Have questions? We have answers! Our South Dakota attorneys answer the questions they hear most often from clients just like you.

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  • Who is a “parent” under FERPA?


    Under FERPA, a “parent” means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or guardian.

  • How long does a school district have to comply with a request to view education records?


    FERPA requires that a school district comply with a request by a parent or eligible student for access to education records within a reasonable period of time, but not more than 45 days after receipt of a request.

  • May a school board prohibit a teacher from sharing his or her personal political viewpoints with students during instructional time?


    Yes. The Supreme Court has stated that when public employees make statements in their official capacities, they are not speaking as public citizens for First Amendment purposes, and their comments are not isolated from regulation by the employer. Since teachers making statements during instructional time are speaking in their official capacities, the First Amendment does not protect their comments. As a result, school boards may adopt policies that prohibit employees from discussing their personal political views with students during instructional time.


  • Is a school district required to provide transportation to a student who transfers within the district?


    No. If a student transfers from one school to another school within a school district at the request of the student’s parent or guardian, the school district is not required to provide transportation services to the student.  

  • What is the “enrollment options program”?


    In 1997, the South Dakota Legislature established the “enrollment options program,” commonly referred to as “open enrollment.” The law enables any South Dakota kindergarten through twelfth grade student to attend any public school that serves the student’s grade level in any South Dakota school district.

  • Is a school district required to accept credits from a transfer student?


    Yes. A school district must accept credits for any course completed in any other accredited school district under the open enrollment program. However, the nonresident district must award a diploma to a nonresident student only if the student satisfactorily meets its graduation requirements.

  • What is a school district’s responsibility in reviewing an open enrollment request?


    A school district must grant a request for a transfer into the district or within the district unless the transfer would result in an inability to provide a quality educational program based on criteria established by the district under S.D.C.L. § 13-28-44. 

  • May a teacher wear a political button, pin, or T-shirt in the classroom?


    The Supreme Court has stated that a school district may refuse to sponsor speech that might reasonably be perceived to “associate the school with any position other than neutrality on matters of political controversy.” On this basis, a school board may adopt a viewpoint-neutral dress code policy that prevents its employees from wearing political buttons, pins, or T-shirts at work during work hours. Enforcement of the policy would avoid creating an impression that the school district endorses a particular party or political view.

  • May a school board prohibit employees from engaging in political activities on their personal time?


    The United States Supreme Court has ruled that public school teachers, like other public employees, do not forfeit their constitutional protections when they take a government job. Among the constitutional protections provided are those established under the First Amendment, including the freedom of speech.

  • Can a parent challenge inclusion of an IEP Team member invited by the school?

    A parent can challenge a member that the school has invited, but the parent’s objection will not control. While it may be best for everyone involved to find someone else to attend in the person’s stead, the U.S. DOE has noted that a parent can refuse to provide consent only for the public agency to invite other agencies that are likely to be responsible for providing or paying for transition services. “A parent may not exclude any of the required members of the IEP Team.”

    71 Fed. Reg. 46673 (2006).