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 school board impose a lesser penalty for a drug-related violation?

    No. A school board may not impose a lesser consequence than those established in SDCL 13-32-9.  However, a school board may adopt a policy with more strict consequences to meet the needs of the school district.

  • Under what circumstances may the one-year penalty for a first violation be reduced?

    The one-year suspension may be reduced to thirty (30) calendar days if the student participates in an assessment with a certified or licensed addiction counselor. However, if the assessment indicates the need for a higher level of care, the student is required to complete the prescribed program before becoming eligible to participate in extracurricular activities.

  • What impact does a first drug-related violation have on a student’s eligibility for extracurricular activities?

    Any student adjudicated, convicted, placed in an informal adjustment or court-approved diversion program, or granted a suspended imposition of sentence or suspended adjudication of delinquency for possession, use, or distribution of controlled drugs or substances or marijuana as defined by SDCL 22-42, or for ingesting, inhaling, or otherwise taking into the body any substances as prohibited by SDCL 22-42-15, is ineligible to participate in any extracurricular activity at any secondary school accredited by the Department of Education for one calendar year from the date of adjudication, conviction, diversion, or suspended imposition of sentence.

  • How does a school board properly give public notice of its official meetings?

    A school board must provide public notice with a proposed agenda that is visible, readable, and accessible for at least an entire, continuous twenty-four hours immediately before any official meeting.  

    A copy of the notice must be posted, visible to the public, at the school district’s principal office.  The proposed agenda must include the date, time, and location of the meeting.   

  • Is educational malpractice recognized as a valid legal claim in South Dakota?

    The South Dakota Supreme Court has not considered whether a claim for educational malpractice is valid in South Dakota. However, the South Dakota Federal District Court recently predicted that the South Dakota Supreme Court would not recognize educational malpractice as a proper claim.

    Specifically, the Federal District Court rejected a claim for educational malpractice because (1) the lack of a satisfactory standard of care by which to evaluate an educator; (2) the inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student’s attitude, motivation, temperament, past experience, and home environment; (3) the potential for a flood of litigation against schools; and (4) the possibility that such claims will embroil the courts into overseeing the day-to-day operations of schools.  

  • What is “educational malpractice”?

    Generally, educational malpractice claims fall into one of three different categories: (1) the student alleges that the school negligently failed to provide him with adequate skills; (2) the student alleges that the school negligently diagnosed or failed to diagnose the student’s learning or mental disabilities; or (3) the student alleges that the school negligently supervised his training.  (See Moore v. Vanderloo, 386 N.W.2d 108, 114 (Iowa 1986)).   

    To find out if educational malpractice is recognized as a valid legal claim in South Dakota - please click here.

  • Who is considered a “child with a disability” under the Individuals with Disabilities Education Act?

    To be considered a "child with a disability" under IDEA, a student must have one or more of the following disabilities which must adversely affect the student’s educational performance:

    • intellectual disability

    • hearing impairments (including deafness)

    • speech or language impairments       

    • visual impairments (including blindness)

    • serious emotional disturbance

    • orthopedic impairments

    • autism

    • traumatic brain injury

    • health impairments (including ADHD, epilepsy, a heart condition)

    • specific learning disabilities

  • May a student be excused from school attendance to attend a state or nationally recognized youth education program?

    Yes. A student can be counted for school attendance for up to five days in a school term if an excuse from school attendance is requested by a parent or guardian for the purpose of attending events of state or nationally recognized youth programs of educational value.

  • How does a divorce or separation impact a student’s “school residence”?

    If a student’s parents or guardians are separated or divorced, the school residence is the school district in which the custodial parent or guardian has residence. 

  • May a student be excluded from school because of the risk of an infectious disease?

    Yes.  A school board or school superintendent may, with the approval of the county health officer, exclude a student from school attendance who is determined to be a risk or nuisance to the health of other students or school employees because of the presence of an infectious disease or communicable parasite.