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SDCL 13–1-25 reads as follows:

General supervision of elementary and secondary schools. Subject to policies established by the state board, the superintendent of elementary and secondary education shall have general supervision over all elementary and secondary schools in the state including adult education, kindergarten, nursery schools, and summer schools, and shall perform such other duties and have such other powers as set forth in this title and as elsewhere provided by law.

SDCL 13–3–25 reads as follows:

Supervisory control over school buildings and sanitary conditions.—The superintendent of elementary and secondary education shall have the power to exercise a supervisory control over the acts and doings of the school board pertaining to the management and conduct of such schools by said board and of the maintenance and repair of facilities, and the maintenance of sanitary conditions in and about the same, and to direct repairs and the correcting of the unsanitary conditions when needed.

SDCL 13-3 47 reads as follows:

Classification and accreditation of schools.—It shall be the duty of the superintendent of elementary and secondary education to classify, approve, or accredit elementary, secondary, adult education, kindergarten, nursery, and summer schools, both public and no blic, under the rules as established by the state board of education.

SDCL 13-5-1 reads as follows:

School districts defined—General corporate and proprietary powers.-Any territory heretofore or hereafter organized for the express purpose of operating not less than a twelve-year school program and governed by a duly elected school board is defined to be a school district. It may sue and be sued, contract and be contracted with, purchase, hold, and use personal and real property for school purposes, and sell and dispose of the same.

SDCL 13-8-1 reads as follows:

School board defined.—The school board is an elected body created according to the laws of the state to serve as the governing board of a school district for the purpose of organizing, maintaining, and locating schools and for providing educational opportunities and services for all citizens residing within the school district.

SDCL 13-8-39 reads as follows:

Management of schools by board—General powers.—As provided and limited by law, the school board shall have general charge, direction, and management of the schools of the district and control and care of all property belonging to it and shall have power to levy taxes, borrow money, employ any necessary personnel, to lease real and personal property, carry liability and other insurance, purchase all necessary books and equipment and purchase real property and erect necessary buildings for the operation of such schools.

SDCL 13–10–2 reads as follows:

General power of school boards to employ personnel.The school board shall have the power to employ personnel deemed necessary by the board and to define the duties and fix the compensation of each.

SDCL 13–11–2 reads as follows:

Adoption of annual school budget-Publication-Cash flow-Levy- Changes in budget.—The school board shall cause a proposed budget for the next fiscal year to be prepared according to the budgeting standards prescribed by the auditor general for consideration at the regular meeting in the month of May. The proposed budget shall be published in the designated official newspaper not later than July fifteenth together with a notice of hearing on the budget, which hearing shall be held before August first. Before September first every school board shall approve a budget for the anticipated obligations of each fund for the school fiscal year. Such budget may include an amount to provide cash flow funding to guidelines prescribed by the auditor general. By resolution the school board shall adopt a levy in dollars sufficient to meet the school budget for all the funds. Any changes in the proposed budget incorporated into the final budget shall be published in the minutes of the first meeting of the board after the final adoption of the budget.

SDCL 3-15-2 reads as follows:

State board contracts for education of Indian children-Receipt and expenditure of federal grants.—The state board of education is hereby authorized to enter into contracts with the United States department of the interior for the education of Indian children, to receive grants of federal funds for that purpose,

and to expend such funds under such rules as the state board of education may establish.

SDCL 13–27-1 reads as follows:

Responsibility of person controlling child-Ages of compulsory attendanceEntire school term.-Every person having under his control a child of the age of seven years and not exceeding the age of sixteen years, shall annually cause such child to regularly attend some public or nonpublic elementary school for the entire term during which the public school in the district in which such person resides, or the school to which such child is assigned to attend, is in session, until the child shall have completed the first eight grades, or shall have reached the age of sixteen years, unless excused as hereinafter provided.

SDCL 13-27-20 reads as follows:

Complaints before circuit court against persons responsible for truancyContents of complaint-Verification.-It shall be the duty of all truancy officers to make and file complaints, and any teacher, school officer, or any citizen may make and file such complaints, before a circuit court, against any person having control of a child of compulsory school age who is not attending school or whose attendance is irregular, or who has been guilty of habitual truancy; and such complaint shall state the name, if known, of the father or mother of such child or the survivor of them, and if the father or mother is not living or cannot be found in the county or if their names cannot be ascertained, then the name of the legal guardian, and if there be none, then the person who in the judgment of the complainant is responsible for the control of the child. Such complaint shall be verified by oath upon belief of the complainant.

SDCL 13 43–26 reads as follows:

Official teacher evaluation policy-Adoption by school boards.—Each school board shall adopt official standards, criteria and procedures for the evaluation of the professional performance of members of the teaching profession employed in the school district. A copy of the school board's official evaluation policy shall be forwarded to the division of elementary and secondary education. If a school board has failed to adopt and file its official evaluation policy, the evaluation policy promulgated by the commission shall become the school board's policy.

SDCL 20-13-22 reads as follows:

Educational institutions' unfair or discriminatory practices—Exemption for religious institution.—It shall be an unfair or discriminatory practice for any educational institution :

(1) To discriminate in any manner in the full utilization of or benefit from any educational institution, or the services rendered thereby to any individual because of race, color, creed, religion, sex, ancestry, or national origin.

(2) To include, expel, limit or otherwise discriminate against an individual seeking admission as a student, or an individual enrolled as a student because of race, color, creed, religion, sex, ancestry or national origin.

(3) To make or use a written or oral inquiry, or form of application for admission that elicits or attempts to elicit information, or to make or keep a record, concerning the race, color, creed, religion, ancestry or national origin of an applicant for admission except as may be permitted by regula

tions of the commission. This section shall not apply to any bona fide religious institution with respect to any qualification based on religion which such qualification is related to a bona fide religious purpose.

In South Dakota, the Constitution places the duty on the Legislature to establish and maintain a general and uniform system of public schools, the Legislature has therefore enacted numerous statutes relating to education, a few of which are set forth above. In answer to your specific question, it is my opinion that there s conflict between certain proposed federal regulations (part 403) to implement P.L. 93-638 and the statutes cited above and other statutes not cited herein.

Further, there are serious questions raised with the right of federal bureaucratic officials to change, not by law, but by regulations, the affirmative statutes of the State of South Dakota. As elected and duly appointed officials of the State of South Dakota, school board members, the Office of the Governor and myself are bound to give precedence to carrying out the legal mandates of our state law. Respectfully submitted.


Attorney General.

Mr. BARNES. Mr. Rabenberg.



Mr. RABENBERG. Senator Abourezk, I am sure you will remember that it was just last February that we were back here testifying in opposition to, I guess, Senate bill 1017.

In the past, and I might mention before I get into my text, we would be one of those schools that would be the most severely hit. I would like to

go back and lay a little bit of groundwork for this. In the past, South Dakotas congressional delegation was able to help schools with less than 70-percent Indian enrollment obtain a waiver. This waiver was based on the school's proven need. The draft regulations now say that a school must have 51-percent Indian enrollment to be considered for such a waiver.

This 51-percent figure comes as quite a surprise to the South Dakota schools. The 51-percent waiver requirement will not help any school in our State receive basic support money. It is doubtful, with declining enrollment, that this requirement will ever become a factor in the future.

Various inquiries have been made as to the 51-percent requirement and it seems to remain as mysterious as the 70-percent enrollment figure obtained in Senate bill 1017 and then advanced to Public Law 638. No one at the State level has been able to establish a correlation with these percentages to any known factor.

The Sisseton schools will be hardest hit in South Dakota if this 51-percent requirement remains.

Senator ABOUREZK. Is Sisseton the only school with less than 51percent in South Dakota?

Mr. RABENBERG. We only have one school with over 51 percent. We would have two, Wakpala

Senator ABOUREZK. Do you have a breakout on various districts on the reservation?

Mr. BARNEs. Other than Todd County, there should be seven school districts that would fall in the 51 percent.

Senator ABOUREZK. What is the lowest percentage with Indian students?

Mr. BARNEs. I'll have to take this off the top of my head. I think probably West River with about 22 or 23 percent.

Senator ABOUREZK. The 20-percent figure would get you under the waiver provision if you put that in, is that right?

Mr. BARNES. I think 20 percent would, yes.
Senator ABOUREZK. I'm sorry to interrupt you.

Mr. RABENBERG. The Sisseton Public Schools would be eliminated from the Johnson-O'Malley basic support program after this year. The 75-percent requirement to qualify in the newly attached laws of 51-percent Indian enrollment to be considered for a waiver would virtually eliminate their funding. Sisseton has some 600 Indian students. approximately 36 percent of their enrollment.

Under our waiver, before our proven need was some $360,000. School districts with concentrations of Indian youngsters have become dependent on Johnson-O'Malley funding over the years. Since this act has been around since 1934, why the overnight attitude to eliminate funding at this time?

Presently, a smaller school with 100 Indian youngsters could qualify for help. Theoretically, under a 51-percent requirement or 75-percent requirement. But in contrast, the needs of some 600 Indian youngsters enrolled in Sisseton would not be met, in fact help would be virtually eliminated. One question of this committee today is “Was this the intent of Public Law 638?" If not, it stands in need of revision.

Senator ABOUREZK. I have an additional question relating to Public Law 874 funds, which are made available to public school districts in lieu of taxes for Indian children residing on trust lands. Does Public Law 874 provide enough money to meet operating expenses for Indian students?

Mr. RABENBERG. No, sir.

Senator ABOUREZK. To what extent does Public Law 874 meet such expenses?

Mr. RABENBERG. It varies from school to school because you have different factors involved but I would say it would be in the neighborhood of $250 to $300 short.

Senator ABOUREZK. Per student?

Mr. RABENBERG. Yes. When we were in last time, you will remember there was quite a bit of controversy to the topic of Public Law 874. We will leave our-our State Department has furnished why we are on a State rate rather than on comparable districts or on the national rate. These have been documented by our State Department, comparable studies. I hope this would leave without a doubt in the committee's mind that the State average is the way for our State to go. We have 20 some schools involved.

Senator ABOUREZK. You can insert that in the record. Your time is just about up now.


BOARDS OF SOUTH DAKOTA, CONDE, S. DAK. Mr. TAYLOR. Mr. Chairman, my name is Keith Taylor, from Conde, S. Dak. I am president of a small district that serves students in four counties. I am also a member of the board of directors of the Associated School Boards of South Dakota which is a State organization of local boards of education.

I have firm faith that the really real strength in this country of ours and in our State is based in the grass roots area. But I view these regulations as another attempt to actually move the control of education away from the citizens of our land. It would seem that these regulations assume, and I think rather improperly, that various present avenues of communication about educational efforts are not active and they are not functioning,

Let me illustrate quickly. The citizens of South Dakota have control over the destiny of education and the schools by an elected school board and we support this wholeheartedly. We think these people should be in the elected school boards and not in advisory capacities where the responsibilities are not necessarily carried through.

Some of these other areas have already been mentioned. We have budget hearings. The community as a whole has an opportunity to make that input. We welcome this input before final decisions are made. Teacher evaluations are a function of the management team. By management team, I mean the school administrators and the school board. We also have to meet certification standards for teachers, we have to meet requirements for accreditation.

I think we might point out here, too, that our National School Boards' Association in convention last spring in Miami spoke in resolution to some of these very same things. They support the Federal funding but they support it on a basis that decision for expenditures will be made on a local level. By local level, I am sure we are talking about elected boards of education.

We would note that item by item in this document which we will file, we endorse the things-Judy Olson, chairman of our State board of education and Dr. Apker of the National Association of State Boards of Education, specifically item by item, compares to our State laws.

Senator ABOUREZK. Keith, your time is up.

Mr. RABENBERG. Senator, one short statement. Senator, I think we would be amiss if we did not have an alternative to present to this as far as the Sisseton public schools are concerned. I feel if we are going to avert a crisis, we would have to ask that this committee consider a hold harmless type of clause, something like contained in Public Law 874. That we do not overnight drop 100 percent funding of this nature. It is too great an amount. We cannot release 40 percent of our personnel and come back and say we can do just as good a job. There is no way it can be done.

We would ask that if the 51 percent have to stay, then we've got to go, and we be given some way to die honorably.

Senator ABOUREZK. Or slowly.

[The prepared statements of Mr. Rabenberg, Ms. Olson and Dr. Apker follow:] STATEMENT OF M. J. RABENBERG, SUPERINTENDENT OF SCHOOLS, SISSETON, S. DAK.

In the past, South Dakotas' Congressional Delegation was able to help schools with less than 70 percent Indian enrollment obtain a waiver. This waiver was based on the schools' proven need. The draft regulations now say that a school must have 51 percent Indian enrollment to be considered for such a waiver.

his 51 percent figure comes as quite a surprise to the South Dakota schools. The 51 percent waiver requirement will not help any school in our state receive basic support money. It is doubtful, with declining enrollment, that this requirement will ever become a factor in the future.

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