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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  • 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.

  • Is a school district required to obtain criminal background investigations of its prospective employees?

    Yes. In South Dakota, any person over eighteen years of age hired by a school district must submit to a criminal background investigation.

  • When does a newly elected school board member take office?

    In South Dakota, a newly elected school board member takes his or her office at the annual July meeting of the school board.  

  • What role does the South Dakota Constitution play in public education?

    Article VIII, Section 1 of the South Dakota Constitution emphasizes the importance of a “general and uniform system of public schools” and places the duty to establish the system on the State Legislature:

    The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge, and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education.

    The Legislature also has the duty to fund education. Article VIII, Section 15 of the South Dakota Constitution directs the Legislature to provide through general and local taxation as follows:

    The Legislature shall make such provision by general taxation and by authorizing the school corporations to levy such additional taxes as with the income from the permanent school fund shall secure a thorough and efficient system of common schools throughout the state.

  • How are the South Dakota Board of Education’s members selected?

    The members of the South Dakota Board of Education are appointed by the Governor with the advice and consent of the senate.

  • What are the functions of the South Dakota Board of Education?

    The South Dakota Board of Education has several functions, including:

    1. Promulgating administrative rules to establish standards for the classification and accreditation of the state’s schools;
    1. Establishing standards for preparing certified personnel;
    1. Establishing procedures for determining a school district’s eligibility to receive state aid to education funding;
    1. Adopting policies and rules necessary to establish standards and procedures for career and technical education; and
    1. Establishing curriculum requirements for a recommended high school program for all public and nonpublic schools within the state.