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Due Process

The South Dakota Board of Education has adopted a due process procedure that must be used by a public school suspending or expelling students. Copies of the South Dakota Board of Education's rules should be available in every school.

Additional procedures may be required when disciplining special education students. The South Dakota Board of Education has adopted due process procedures that public schools should follow when considering suspension or expulsion of special education students.

Suspension & Expulsion

Suspension and expulsion are disciplinary measures involving exclusion from school. Short-term suspension is an exclusion from school for ten (10) days or less. Long-term suspension is an exclusion from school for more than ten (10) days but not more than ninety (90). Expulsion is exclusion from school for not more than twelve (12) months. Expulsion and long-term suspension are reserved for school board action, and a hearing must be provided. A short-term suspension does not require a formal hearing before the school board, but the student must be given an opportunity to be heard. Detentions and in-school suspensions require no formal due process hearing. The formality and need for documentation of procedures quickly escalates when the exclusion exceeds ten (10) days. This is because state law grants students an "entitlement" to education. The student may not be deprived of this entitlement by the government (i.e. school) without due process of law. Students' rights to hearing procedures relative to suspension and expulsion are outlined in state law as follows:

SDCL 13-32-4. The school board of every school district shall assist and cooperate with the administration and teachers in the government and discipline of the schools. The board may suspend or expel from school any student for violation of rules or policies or for insubordination or misconduct, and the superintendent or principal in charge of the school may temporarily suspend any student in accordance with SDCL 13-32-4.2.

The rules or policies may include prohibiting the following:

  1. The consumption or possession of beer or alcoholic beverages on the school premises or at school activities;
  2. The use or possession of a controlled substance, marijuana, drug paraphernalia, cigarettes, and huffing materials, without a valid prescription, on the school premises or at school activities; and
  3. The use or possession of a firearm, as provided in SDCL 13-32-7, on or in any elementary or secondary school premises, vehicle, or building or any premises, vehicle, or building used or leased for elementary or secondary school functions or activities.

In addition to administrative and school board disciplinary action, any violation of SDCL 13-32-7 shall be reported to local law enforcement authorities.

The period of expulsion may extend beyond the semester in which the violation, insubordination, or misconduct occurred. Any expulsion for consumption or possession of beer or alcoholic beverages may not extend beyond ninety school days. If a student has intentionally brought a firearm onto school premises, the expulsion may not be for less than twelve months.

However, the superintendent or chief administering officer of each local school district or system may increase or decrease the length of a firearm-related expulsion on a case-by-case basis. The South Dakota Board of Education shall promulgate rules pursuant to SDCL ch. 1-26-26 to establish administrative due process procedures for the protection of a student's rights. The administrative due process procedures shall include a requirement that the school give notice of a student's due process rights to the parent or guardian of the student at the time of suspension or expulsion. Each school district board shall provide a procedural due process hearing, if requested, for a student in accordance with such rules if the suspension or expulsion of the student extends into the eleventh school day.

This section does not preclude other forms of discipline which may include suspension or expulsion from a class or activity.

This section does not prohibit a local school district from providing educational services to an expelled student in an alternative setting.

SDCL 13-32-4.2. The school board in any district may authorize the summary suspension of pupils by principals of schools for not more than ten school days and by the superintendent of schools for not more than ninety school days. In case of a suspension by the superintendent for more than ten school days, the pupil or his parents or others having his custodial care may appeal the decision of the superintendent to the board of education. Any suspension by a principal shall be immediately reported to the superintendent who may revoke the suspension at any time. In event of an appeal to the board, the superintendent shall promptly transmit to the board a full report in writing of the facts relating to the suspension, the action taken by him and the reasons for such action; and the board, upon request, shall grant a hearing to the appealing party.

No pupil may be suspended unless:

  1. The pupil is given oral or written notice of the charges against him;
  2. The pupil is given an oral or written explanation of the facts that form the basis of the proposed suspension; and
  3. The pupil is given an opportunity to present his version of the incident.

In the event of a suspension for more than ten school days, if the pupil gives notice that he wishes to appeal the suspension to the board, the suspension shall be stayed until the board renders its decision, unless in the judgment of the superintendent of schools, the pupil's presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, in which case the pupil may be immediately removed from school, and the notice and hearing shall follow as soon as practicable.

These statutes do not preclude other forms of discipline, which may include suspension or expulsion from a class or activity.

Possession of Tobacco, Alcohol, Drugs & Firearms

The South Dakota Legislature has decreed that possession of tobacco and alcohol by minors is prohibited. In addition, possession of controlled substances and marijuana are crimes in South Dakota, unless an authorized healthcare provider specifically prescribes the controlled substance. Severe state and federal penalties are possible for violations under state law and the federal "SAFE AND DRUG-FREE SCHOOLS ACT."

For example, SDCL 13-32-9 provides suspension from extracurricular activities for controlled substance and marijuana violations. School officials are duty bound to observe and enforce these laws. In addition, both the federal "GUN-FREE SCHOOLS ACT OF 1994" and SDCL 13-32-7 prohibit the presence of any firearm or dangerous weapon on school grounds.

SDCL 13-32-7. Any person, other than a law enforcement officer, who intentionally carries, has in his possession, stores, keeps, leaves, places or puts into the possession of another person, any firearm or air gun, whether or not the firearm or air gun is designed, adapted, used or intended primarily for imitative or noisemaking purposes, or any dangerous weapon, on or in any elementary or secondary school premises, vehicle or building or any premises, vehicle or building used or leased for elementary or secondary school functions, whether or not any person is endangered by such actions, is guilty of a Class 1 misdemeanor. This section does not apply to starting guns while in use at athletic events, firearms or air guns at firing ranges, gun shows and supervised schools or sessions for training in the use of firearms. This section does not apply to the ceremonial presence of unloaded weapons at color guard ceremonies.

Finally, dangerous weapon is defined in SDCL 22-1-2(10) as "any firearm, knife or device, instrument, material or substance, whether animate or inanimate, which is calculated or designed to inflict death or serious bodily harm." Whether an item is a dangerous weapon is a factual question that should be discussed with legal counsel.