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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  • 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).

  • Are schools and parents allowed to be represented by attorneys at IEP meetings?

    The U.S. DOE has responded to this question as follows:

    "[The IDEA] authorizes the addition to the IEP team of other individuals at the discretion of the parent or the public agency only if those other individuals have knowledge or special expertise regarding the child. The determination of whether an attorney possesses knowledge or special expertise regarding the child would have to be made on a case-by-case basis by the parent or public agency inviting the attorney to be a member of the team.

    The presence of the agency’s attorney could contribute to a potentially adversarial atmosphere at the meeting. The same is true with regard to the presence of an attorney accompanying the parents at the IEP meeting. Even if the attorney possessed knowledge or special expertise regarding the child, an attorney’s presence would have the potential for creating an adversarial atmosphere that would not necessarily be in the best interests of the child. Therefore, the attendance of attorneys at IEP meetings should be strongly discouraged." 64 Fed.Reg. 12478 (1999).

  • What is required of a Full and Individual Evaluation (FIE) under IDEA?


    A FIE must consist of procedures "to determine whether a child is a child with a disability [as defined by IDEA]" and "to determine the educational needs of such child."

  • What is a Full and Individual Evalution (FIE)?

    Under IDEA, a Full and Individual Evaluation (FIE) requires a school district to "conduct a full and individual initial evaluation . . . before the initial provision of special education and related services to a child with a disability."

  • In South Dakota, are school board elections partisan or non-partisan?

    In South Dakota, school board members are elected on a non-partisan basis.

  • May a school district require the random drug testing of students who participate in extracurricular activities?


    Yes. In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822 (2002), the Supreme Court held that mandatory, suspicionless drug testing of public high school students participating in extracurricular activities is a constitutionally reasonable intrusion that furthers a public school’s legitimate interest in deterring drug use among children. 

    The Supreme Court further found that a public school does not need to demonstrate a pervasive drug problem among the population subject to testing to warrant the intrusion. In sum, the Supreme Court determined that the government’s compelling interest in preventing and eradicating drug use among children outweighs the limited privacy expectations held by public middle and high school students.  

  • In South Dakota, can a public school district employee lose his job if he runs for public office?

    No. Under South Dakota law, no employee of a public school can lose his job or job status for becoming a candidate for any public office if it does not entail neglect of duty.

  • In South Dakota, who has supervision over school libraries?

    The secretary of education has supervision over school libraries.