Since the South Dakota legislature changed the rules regarding alternative instruction in the 2021 legislative session, activity participation is one of the most common questions we receive. To what extent can alternative instruction students participate in activities in districts other than the one in which they reside? The Department of Education decided this week to put its oar into the water on this issue. According to the Department, homeschool students can only be denied open enrollment due to capacity, even if the student outright states they will only participate in sports and won’t enroll in any classes.
The DOE memorandum stated that it was a response to a joint opinion issued by the Associated School Boards of South Dakota (ASBSD), the School Administrators of South Dakota (SASD), and the South Dakota Council of School Attorneys. This joint statement took the position that students do not have a right under state law to participate in activities in a school other than the one in which they reside, regardless of enrollment status. The statement relied mostly on SDCL 13-28-43 which governs open enrollment applications, and states that an approved open enrollment application “obligates the student to attend school in the non-resident district or desired school during the school year[.]” The opinion also noted South Dakota’s statute regarding extracurricular participation, which compels schools to allow for participation for “a child being provided alternative instruction pursuant to SDCL 13-27-3 within the district in which the child resides.”
The DOE’s memorandum does not discuss these statutory provisions. Instead, it asserts that the only reason a school can deny an open enrollment request is pursuant to the capacity restrictions of SDCL 13-28-44 (e.g. “our sixth grade section is already full, we can’t accept you.”). DOE goes one step further in their memo by asserting this has been their position since the new laws went into effect. The memo also includes fine arts as an option for nonresident homeschool students but doesn’t address how credit issuance would function in those circumstances.
We’ll be monitoring this situation as it progresses, but we recommend school administrators reach out to their school attorney to discuss how their district wants to approach this issue. Please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara with any questions or send us all an email at ksb@ksbschoollaw.com