Section 1  Uniform System of Free Public Schools

For other constitutional provisions relating to this article, see Section 8 of Article XIV and Article XXII. According to the South Dakota Supreme Court, education is one of the most important functions of state and local governments (Olson v. Guindon, 2009). Moreover, South Dakota has been recognized as one of a few states with “strong mandate” constitutional provisions on education.¹⁰²

The 1885 constitutional convention, which produced the document that was for the most part to become the constitution ratified in 1889, adopted Article VIII essentially as drafted by General Beadle.¹⁰³ Indeed, most of the sections were ratified without significant debate.¹⁰⁴ Sections 2 through 14 (p. 162) pertained to school lands and to the creation of a permanent fund that would endow the public schools in the state. This permanent school fund could be increased, but never decreased. All losses to the fund had to be rectified by the state, and all income from the fund had to be used exclusively for maintaining the public school system.

As the South Dakota Supreme Court has held, the state legislature’s control over education is unlimited, except as restrained by either the state or federal constitution, and therefore the legislature should be largely free from judicial interference (Anderson v. South Dakota High School Activities Association, 1976). The educational policy of the state is a matter for the legislature, and not for either the Board of Regents or the courts (State ex rel. Prchal v. Dailey, 1931). For instance, the formation of school districts is entirely within the power of the legislature, and the enlargement or dissolution of those districts is a legislative function (Fairview Independent School District v. County Board of Education of Hand County, 1972).

The South Dakota Supreme Court has described the ultimate authority of the legislature to control the education policy of the state:

We think it is elementary that the people through their legislature and the constitution have a right to control and prescribe the limits to which they will go in supplying education to the children and youth of the state at public expense. Neither educators nor administrative boards can expend public funds for education, unless the education for which it is expended is authorized by law. If that is true, we must look to the constitution and the statutes of this state for the authority of the regents to maintain the normal schools involved in this action as teachers colleges.

(State ex rel. Prchal v. Dailey, 1931)

Section 2  Perpetual Trust Fund for Maintenance of Public Schools—Principal Inviolate

With respect to the funding of public education, an initial position at the 1885 constitutional convention held that school lands should be sold quickly (p. 163) so as to help new settlers establish new communities.¹⁰⁵ Another viewpoint, however, envisioned that the school lands would increase in price as the state was settled, and that those lands, so as to produce a large enough education endowment for the state, should not be sold for less than a constitutionally set minimum price.¹⁰⁶ This latter view prevailed, and a minimum price of $10 per acre was set.

Two proposed amendments to this section were rejected in 1976 and 1998. However, an amendment permitting the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments, and to use a certain portion of the interest and income to increase the principal of the fund, was approved by the voters on November 7, 2000.

This section specifies and regulates the assets in the permanent public school fund. In an early case, involving whether the legislature, through the issuance of state bonds, could remedy the losses to the interest and income funds and to the permanent school funds, as a result of defalcation of the state treasurer, the South Dakota Supreme Court addressed the relationship between Sections 2, 3, 7, and 13 of Article VIII. Under Section 3, the state has the obligation to remedy all losses to the interest and income from the permanent school funds, insofar as that section requires the state each year to distribute such interest and income to the various school districts. This mandatory duty to distribute is not relieved simply because a state officer has misappropriated such funds (In re State Bonds, 1895). Therefore, any loss of such monies due to the fault of the state must be made up by legislative appropriation. Moreover, a liability of the state to make up such losses is not counted as part of the indebtedness to which the state is limited. As the court explained:

Our judgment is that the liability of the state to distribute the interest of the permanent school fund, being thus clearly imposed, is strictly binding, although a part or all of said interest monies may have been misappropriated or lost by its immediate custodian, and that, as already intimated, such liability is not a debt, within the meaning of that provision of the constitution limiting the debt contracting power of the state. The monies to be distributed and paid over are not general funds belonging to the state, and which the legislature might have depleted by appropriations for other purposes. These funds do not belong to the state, but to the several school corporations. The state is simply a constitutionally-appointed trustee, with the imposed duty of distributing to the real owners of the fund whatever of such monies have been received by it up to the 15th day of June of each year. At no time does the state owe these interest monies to the school corporations. The relation of the state to the school corporation is not that of debtor, but rather that of bailee of a special deposit. It may (p. 164) be suggested that the same is true as to the permanent fund or principal, but the constitution itself answers the suggestion, by expressly providing that, in cases of loss to the permanent fund, the state may and must substitute its own promise to pay to the extent of such a loss. So understood, Section 13, which requires the loss to the permanent school or other educational funds to be audited and remain a permanent funded debt against the state, is no application to losses to the interest and income therefrom, which the state is required to distribute annually.

(In re State Bonds, 1895)

When there is a loss to the permanent school fund due to negligence, fraud, or mismanagement of the state, the legislature has a duty not only to make up the loss of that principal amount to the permanent school fund, but also a separate obligation to make up the interest payments that would have been made from that lost principal. This latter obligation cannot appear just in the form of public indebtedness, but must be specifically distributed to the school districts, since the state’s school districts are entitled to an annual distribution of the interest on the full permanent school funds. As the court explained this two-fold obligation imposed by Sections 2 and 3 of Article VIII:

In the one case the losses to a permanent fund, which is always to remain as an interest-bearing principal, and, in cases of loss to it, the state is required to put in the place of such loss its own promise to pay, upon which it shall pay interest. In the other case the state is required, not to promise or undertake anything executory, but is required actually to pay over the interest money precisely as though no loss had occurred.

(In re State Bonds, 1895)

While the state can make up for a loss in the principal of the permanent school fund by a promise to pay, it must make up for a loss in the interest payments that would have been produced by that lost principal by an affirmative appropriation to the school districts. Regardless of the loss in principal, the state is constitutionally required to apportion and distribute the interest on the principal for each year.

The South Dakota Supreme Court has very strictly interpreted the mandates of Section 2, holding that the permanent fund cannot be diminished, no matter how small a degree or how short a period of diminishment. For instance, in addressing the issue of whether certain bonds in the permanent school fund could be sold and essentially converted to bonds bearing a higher interest rate, the court focused on the precise question of whether this transaction would in any way deplete the permanent school funds. Finding that a depletion would in fact occur, even though the proponents of the transaction outlined in good faith the specific ways in which the depletion would be restored, the court struck down the proposal as one that would result in a loss of permanent school funds. The court so ruled even though recognizing that the permanent school funds should be invested so as to earn the highest return compatible with safe investment, (p. 165) as commanded by Section 11 of Article VIII. According to the court, the permanent school funds are “in no sense a speculative trust or a trust that can be used for speculative purposes, however advantageous a change in investments may appear” (Schelle v. Foss, 1957). Even though the court recognized that the transaction anticipated greater returns in the future, the court also recognized that there was no assurance of those greater returns. As the court explained the intent behind the school funds provisions of the constitution:

The framers of our constitution intended to, and did, establish a special trust for the administration and preservation of our permanent school and educational funds. Article VIII of the constitution serves as the trust instrument containing the declarations of trust. Its provisions are written in strong, clear, self-expressive language. Its beneficiaries are all of the public schools in the state together with its endowed charitable and educational institutions. The trust must be administered for their sole benefit and best interests. An involvement of the trust funds for any other purpose, consideration, or motivation would be in violation of the basic intendment of the trust. This fundamental principal is violated by the proposal to sell United States bonds, at a loss, for the sole purpose of providing money to reinvest in local bonds bearing three percent interest. Over $9 million in United States bonds would thus have to sold at an estimated discount of nine percent. The principal funds would thereby be depleted to the extent of the discount. Furthermore, the school funds would also suffer a loss of interest and income. The full amount of principal presently invested in United States bonds bearing interest at two and three-quarters percent provides a higher net return than the depleted principal would return invested in local bonds bearing three percent interest.

(Schelle v. Foss, 1957)

The court refused to read into the 1952 amendment to Section 11, directing the investment of the permanent educational funds so as to provide the highest income compatible with safe investment, the power of the state to cause a depletion of the permanent school funds. The 1952 amendment only applied to Section 11; it did not apply to any other section within Article VIII, and hence did not change or alter the duties of the state in connection with maintaining the permanent school funds. As the court noted:

In establishing the permanent school fund, the framers of our constitution were primarily concerned with the safe, continuous investment of the corpus of such funds. The highest return on that investment was a subordinate consideration. We believe the perpetuation of the fund to be the dominant concern of the people today. We, furthermore, cannot escape the conclusion that the voluntary sale of invested securities belonging to the permanent school funds at a discount would be an unconstitutional assumption of power. Such sales would constitute an unlawful diminishment of the principal of the funds contrary to the provisions of our constitution. (Schelle v. Foss, 1957)

Section 3  Fund Income Apportioned Among Schools—Apportionment of Fines

An amendment to this section approved in 1930 added the second paragraph and deleted a provision for distribution of fines imposed under the first paragraph. Other proposed amendments were rejected in 1942, 1970, 1976, and 1998. A 1982 amendment deleted the language “remitted to the state treasurer and apportioned by the commissioner of school and public lands back to the county from which such monies were collected to be” which appeared after the words “by him” in the second paragraph. A 2000 amendment permitted the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments, and to use a certain portion of the interest and income to increase the principal in the fund.

For a lengthy discussion of this section, consult the commentary of Section 2 above. Section 3 provides for the yearly distribution of the interest and income from the permanent school fund. As discussed under Section 2 above, the state is required to pay out each year to the state’s schools, not just issue a promise to pay, an amount equal to the interest and income earned by the permanent school fund. This mandatory duty exists even if there had been a loss to the fund due to misappropriation. Under this section, the commissioner of school and public lands is charged with distributing the income to the various public schools and to make timely accounts of the fund, thereby permitting a full and timely investment of such funds (State v. Ruth, 1896). Except as provided under Section 11 of Article VIII and appropriate statutes, all gains resulting from the purchase and sale of permanent school trust fund investment securities are to remain part of the trust fund, and are not to be distributed as interest or income (Opinion Attorney General No. 89-14, 1989).(p. 167)

Section 4  Sale of School Lands—Appraisal

A 1975 proposed amendment, defeated on November 2, 1976 by a vote of 188,012 against the amendment to 66,247 in favor, would have, among other things, required the sale or lease by public auction of state property held in public school or other institutional trust funds; would have imposed upon such sale or lease the requirements of a fair market value, a five-year maximum lease with option of renewal without public readvertising; would have prohibited adverse possession or prescription of trust lands; would have allowed the exchange of trust lands for other lands; would have reserved gas, coal, oil, and mineral rights in the state, with their lease or sale as provided by the Legislature; would have apportioned up to 50 percent of the annual proceeds on reserved rights leases to the public schools and various institutions, pursuant to a set ratio.

Section 5  Terms of Sale of School Lands

A 1914 amendment to this section reduced the minimum interest rate on deferred payments from 6 percent to 5 percent. It also required advertisement of sale in a second newspaper in the vicinity and reduced the appraisal period from four years to two years. A 1918 amendment reduced the required down payment from one-fourth to one-tenth and substituted the thirty-year provision for a requirement that deferred payments be in equal installments at the end of five, ten, and fifteen years. The 1918 amendment also changed the minimum 5 percent interest rate to a flat 5 percent and gave the legislature power to prescribe rules for anticipatory payment in full.

Amendments proposed in 1968, 1970, and 1975 were all rejected by the voters. A 1982 amendment substituted the language “interest shall be established by the legislature” for “interest shall be five percent annually.” The amendment also deleted in the first paragraph the following language that occurred after “public auction”:

After sixty days’ advertisement of the same in at least three newspapers of general circulation, two of which shall be located in the vicinity of the lands to be sold, and one at the seat government.

Section 6  Conduct of Sales of School Lands—Conveyance of Right or Title

A repeal of this section was rejected by the voters in 1976, as was a proposed amendment in 1984.

With respect to school land sales, the South Dakota Supreme Court has not required that a written report of such sales be made from the Commissioner of School and Public Lands to the Governor. Nor is the Governor required to give a written report of approval or disapproval of the sale, even though such written reports might be a sound business and administrative practice (Landers v. Linn, 1961).

Section 7  Perpetual Trust Fund from Proceeds of Grants and Gifts

Section 7 creates a second permanent educational fund for the maintenance of state educational institutions. It designates from what sources the perpetual funds for the university, agricultural college and other educational and charitable institutions shall be derived. Proposed amendments to this section were rejected in 1942, 1976, and 1998. A 2000 amendment approved on November 7, 2000 permitted the investment of permanent school funds and certain stocks, bonds, mutual funds and certain stocks, bonds, mutual funds and other financial instruments, and to use a certain portion of the interest and income to increase the principal of the fund.

Under the Enabling Act, passed on February 22, 1889 by the United States Congress allowing South Dakota to be admitted into the Union as a state, South Dakota was given power over various acreages of federal land designated for the benefit of educational institutions, on the condition that the proceeds from any sales of the lands constitute a permanent fund for the support of the public schools for which the land had been granted. In Section 7 of Article VIII, the South Dakota Constitution incorporated this permanent trust fund requirement. Indeed, the Enabling Act had established the conditions under which the lands granted by the United States to the State of South Dakota for educational institutions must be held and managed (Kanaly v. State of South Dakota, 1985). Section 7 reiterates the trust nature of the school land holdings, providing that all the lands received from the United States as school lands should be placed in a perpetual trust fund. The principal of this fund may be increased but shall never be decreased.

According to the South Dakota Supreme Court, the Enabling Act and Section 7 of Article VIII create a permanent and perpetual trust of all property donated to the state for educational institutions by both the United States and private individuals. Under this permanent trust relationship or “irrevocable compact,” the state is the trustee (Kanaly v. State of South Dakota, 1985). The beneficiaries of this compact or trust created by the Enabling Act and the South Dakota Constitution are the various educational institutions of the state. The beneficiaries do not include the general public, other government institutions, nor even the general welfare of the state (Kanaly v. State of South Dakota, 1985). Therefore, when a school is closed, land owned by that school cannot be transferred without consideration to another government agency. (p. 170) According to the court in Kanaly, the legislative transfer of trust property to another state governmental agency, without compensation reflecting the full market value of the transferred property, is both unconstitutional and in violation of the Enabling Act. Although the state is empowered to convey or transfer trust property, it cannot do so in a manner that diminishes or impairs the trust fund’s principal. Any disposition of land, buildings, or other property must be made for the full market value, with the proceeds delivered to the trust.

Section 8  Appraisal and Sale of Donated Lands—Separate Accounts

A 1975 proposed repeal of this section, which also proposed repealing various other sections of this article, was rejected on November 2, 1976.

Section 9  Lease of School Lands

Proposed amendments to this section were rejected in 1916, 1976, and 1984. A 1910 amendment added farming and agriculture to permissible purposes of leases. A 1948 amendment added the second and third paragraphs. And a 1994 amendment added the last paragraph of this section.(p. 171)

Section 10  Trespassers’ Claims to Public Lands Not Recognized—Improvements Not Compensated

A proposed repeal of this section was rejected in 1976.

Section 11  Investment of Permanent Educational Funds

Proposed amendments to this section were rejected in 1942, 1944, 1950, 1976, 1978, 1984, and 1994. As originally adopted, this section directed investment in farm mortgages, school bonds, and state and federal bonds. It also gave the legislature power to determine the amounts of investment in each class of securities, and it provided for county management of funds invested in farm mortgages and school bonds.

A 1902 amendment reduced the minimum rate of interest from 6 percent to 5 percent. A 1904 amendment provided for investment in county, township, and municipal bonds; it also permitted county management of funds so invested, and changed the maximum farm mortgage loan from half the assessed value to one-third of the actual value. This amendment also increased the maximum county loan to one person from $500 to $5,000.

A 1952 amendment, identical to an amendment rejected in 1950, placed the management of all investments under the authority of the Commissioner of School and Public Lands, deleted authority for investment in township bonds and farm mortgages, and gave the legislature power to fix interest rates. A 1996 amendment deleted all restrictions on the investment of funds and placed the investment authority with the state investment council. The 2000 amendment permitted the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments and permitted a certain portion of the interest and income to be used to increase the principal in the fund.

A related constitutional provision can be found in Article XXVIII, Section 1, which relates to county investment of school funds.

According to the South Dakota Supreme Court, all gains resulting from the purchase and sale of permanent school trust fund investment securities are to remain in the trust fund and not be distributed as interest or income, except as otherwise provided by the constitution (Op. Att’y Gen. 89-14, 1989). Interpreting the 1996 amendment, the attorney general opined that the amendment changed only the entity authorized to invest the trust funds; it (p. 172) did not affect any of the other constitutional provisions that created the trust, including protection of the fund’s principal and dispersal of all interest and income for educational purposes (Op. Att’y Gen. 97-06, 1997).

Section 12  Disapproval by Governor of Sale, Lease or Investment

A proposed repeal of this section was rejected in 1976.

Although this section empowers the governor to disapprove any sale, that disapproval does not have to be made in writing (Landers v. Linn, 1961). As indicated in this section, the governor’s power to disapprove any sale is a discretionary power.

Section 13  Audit of Losses to Permanent Educational Funds—Permanent Debt—Interest

A repeal of this section was rejected in 1976, as was an amendment proposed in 1998. The 2000 amendment, approved on November 7, 2000, permitted the investment of permanent school funds in certain stocks, bonds, mutual funds, and other financial instruments and to use a certain portion of the interest and income to increase the principal of the fund.

The South Dakota Supreme Court’s decision in In re State Bonds (1895), described under Section 2 above, also relates to this section. According to the court, any losses to the perpetual school fund caused by defalcation or mismanagement by the state shall be charged as a debt against the state, which in turn will not be counted as a part of the indebtedness to which the state is limited by Article XIII of the constitution. Not only must the state make good all losses to the permanent fund, but the state must also make good all losses to the interest and income that would have been earned by the lost portion of the permanent fund (In re State Bonds, 1895).

Section 14  Protection and Defense of School Lands

A repeal of this section was rejected in 1976.(p. 173)

Section 15  Taxation to Support School System—Classification of Property

Amendments to this section were rejected in 1964 and 1998. A 1930 amendment added the second and third sentences of this section. The 1966 amendment, which was identical to the rejected amendment in 1964, substituted “agricultural property” for “agricultural lands.” A 2000 amendment permitted the legislature to establish multiple classes of property for school taxation purposes.

The power of the state to classify property for purposes of taxation is a wide and flexible power (Thares v. Brown Co. Board of Equalization, 2000). The constitution empowers the legislature to create as many classes of non-agricultural property as it desires, so long as the taxes are uniform on all property within the same class. Consequently, the valuation of property in one county at twice its assessed value in another county did not violate the constitutional requirement for equality in taxation, since the tax only has to be equal and uniform within each county (West Two Rivers Ranch v. Pennington Co., 2002). However, the valuation of property cannot exceed its actual value, and the taxation rate has to be uniform on all property in the same class and in the same jurisdiction (Butte Co. v. Vallery, 1999).

In Matter of Butte Co. (1986), the court struck down a law that treated irrigated farmland as a separate class from non-irrigated farmland. The court held that the legislature could classify agricultural lands as only one class of property. Thus, if agricultural land was to be classified separately from non-agricultural land, it could only be classified as one class of property. Any attempt to create more than one class of agricultural land violates Section 15.

The constitution gives the legislature the power to make the following classifications of property: one for agricultural property and unlimited classes for non-agricultural property (Thares v. Brown Co. Board of Equalization, 2000). Under the state constitution, agricultural land constitutes its own separate and distinct class for tax purposes. In Gould v. Pennington Co. Board of Equalization (1997), the South Dakota Supreme Court held that a statute violated Section 15 of Article VIII because it created two different classes of agricultural land for taxation purposes. By creating one class of agricultural property that sells for less than 150 percent of its agricultural income value, and another class that sells for more than 150 percent of its agricultural income value, the statute was unconstitutional, insofar as it created two different classes of agricultural property.(p. 174)

However, in Thares v. Brown Co. Board of Equalization, the supreme court upheld a statute that remedied the constitutional defect in the statute at issue in Gould v. Pennington Co. Board of Equalization. In Thares, the statute required all agricultural property that sold for more than 150 percent of its agricultural income value to be classified as non-agricultural land. The court found that this statute did not create a separate class of agricultural land, but rather created a new and separate non-agricultural class of land. This new class of non-agricultural land was characterized by the fact that the sale price as related to income is determinative of whether land will be classified as non-agricultural. Thus, the statute created a separate distinct class of non-agricultural property, rather than creating a new sub-class of agricultural property. Because there are no constitutional restrictions on the number of non-agricultural classes of property, the court in Thares found it reasonable to conclude that when agricultural land sells for a substantially higher price than the agricultural income it is capable of generating, then that land has achieved a non-agricultural value in excess of its prior agricultural value—hence, the property’s classification should be changed to non-agricultural property. According to the court, the sales price can be used as a valid indicator to determine when property has ceased being agricultural and has become non-agricultural.

Prior to 1929, Section 15 was silent regarding the legislature’s authority to classify agricultural property as a separate class for taxation purposes. The relevant constitutional provision was Article XI, Section 2, which provided simply that “taxes shall be uniform on all property of the same class.” Consequently, in Simmons v. Ericson (1929), the South Dakota Supreme Court struck down a tax levy on agricultural property that was less than half the tax levy on non-agricultural property, arguing that this distinction violated Article XI, Section 2. As a result of this decision, an amendment to Article VIII, Section 15 was approved by the voters in 1930, allowing the legislature to classify agricultural lands as a separate class for purposes of taxation.

Section 16  Public Support of Sectarian Instruction Prohibited

This section should be read in light of federal case law under the Establishment Clause of the First Amendment.(p. 175)

Because of the absolute prohibition on any money or aid going to any sectarian school, it is likely that this provision more strictly prohibits government support of sectarian schools than does the federal constitution. After all, federal Establishment Clause jurisprudence allows some types of financial aid to religious schools under a neutrality approach.¹⁰⁷ Under this approach, public aid can flow to religious organizations as long as that aid is distributed on a neutral basis—e.g., through the use of vouchers used by private citizens—and that all organizations, religious and secular, are treated equally. This approach differs somewhat from the U.S. Supreme Court’s approach in the 1970s and 1980s when it sometimes interpreted the Establishment Clause to discourage public aid from going to religious organizations.

Even though under the Lemon test the federal Establishment Clause does not prohibit government funding of textbooks for religious school students, the South Dakota Supreme Court in McDonald v. School Board of Yankton Independent School Dist. No. 1 (1976) struck down the South Dakota textbook loan statute. As the court has recognized, the South Dakota state constitution is not a mere reiteration of the Establishment Clause of the United States Constitution but is “more restrictive as prohibiting aid in every form” (Certificate of a Question of Law from the United States District Court, 1985). The intent of the framers of Section 16 was to “prohibit in every form, whether as a gift or otherwise, the appropriation of the public funds for the benefit of or to aid any sectarian school or institution” (Id.). The court has indicated that the neutrality approach taken by the United States Supreme Court in connection with the Establishment Clause does not apply to the South Dakota constitution. In other words, the fact that textbooks are provided free to all students, regardless of what kind of school they attend, does not render the scheme constitutional under Section 16. According to the court, “the inclusion of additional classes of recipients does not eliminate the constitutional flaw in the challenged statutes.” However, the court also held in Petition of N.C.B. Careers, Inc. (1980) that the granting of a tax exemption to a religious educational institution was not an unconstitutional assistance to religion under Section 16, since the exemption did not involve a direct appropriation of money to a religious educational institution.

The crucial issue is that Section 16 is more restrictive than the Establishment Clause of the United States Constitution. Despite this restrictiveness, however, the court has held that a statute making every accredited high school eligible for membership in the State High School Interscholastic Activities Association did not amount to a gift or appropriation of aid to religious schools, but merely admitted all accredited high schools under uniform rules and regulations (South Dakota High School Interscholastic Activities Association (p. 176) v. St. Mary’s Inter-Parochial High School of Salem, 1966). The constitutional ban on aid to sectarian schools did not require that parochial students, who were otherwise eligible to participate in scholastic activities, be barred from participating in events with public school students just because there would be an incidental use of public school facilities. Thus, the court did not so absolutely and strictly construe the provisions in Article XVI to prohibit any and every public benefit that might be accorded to students of sectarian schools.

On the other hand, according to an attorney general’s opinion, the simultaneous public and private use of a school bus by a public school and a church-run preschool is unconstitutional (Op. Att’y Gen. 92-04, 1992). Thus, the South Dakota Constitution imposes restrictions above and beyond the federal Establishment Clause, under which the United States Supreme Court has allowed such publicly-funded busing benefits to be given to students of a religious school.

Section 17  Interest in Sale of School Equipment Prohibited

In interpreting this section, an attorney general opinion stated that a teacher at a local school district, who also owns and operates a sporting goods store, may not sell to the school district such supplies, materials, and equipment as balls, sports uniforms, scorebooks, wrestling mats, trophies, awards, weightlifting devices, and first aid materials (Op. Att’y. Gen. 87-02, 1987).

Section 18  Apportionment of Mineral Leasing Moneys—Amounts Covered Into Permanent Funds

A 1954 amendment added this section to the constitution. A further amendment proposed in 1975 was rejected on November 2, 1976.

Section 19  Mineral Rights Reserved to State—Leases Permitted

This section was added to the constitution on November 7, 1978.

The Enabling Act of 1889 specifically gives the state the right to exchange state land, subject only to the requirements that such an exchange be authorized by statute and that the exchanged lands be of equal value and, as near as possible, of equal area. Section 2 of Article VIII of the South Dakota Constitution requires that all property acquired for public schools remain in a perpetual trust fund that may never be diminished (Op. Att’y. Gen. 86-42, 1986). In addition, Section 19 reserves all mineral rights to the state, and any mineral exchange cannot diminish the principal of the trust fund. Thus, any exchange of mineral estates must be for equal value, such that the total value of the sum of all mineral estates in the school fund is not diminished. A mineral estate can be exchanged only if the total value of the school trust is not diminished.

Section 20  Loan of Nonsectarian Textbooks to All School Children

This section was added to the constitution on November 4, 1986. A 2004 amendment was rejected by the voters on November 2, 2004.

Pursuant to an attorney general opinion issued after the 1986 amendment, school boards are not required to provide the same textbooks under the textbook loan statute to non-public school students as they provide to public school students (Op. Att’y. Gen. 87-21, 1987). However, boards do have the discretion to provide to non-public school students the same nonsectarian textbooks that are provided to public school students. But a board cannot loan only outdated or discarded books to the non-public school students, unless similar books are used by the public school students. Nor can school boards use their discretionary power in a manner that completely prohibits primary grade students from receiving textbooks in the subject areas required to be taught in the public schools of South Dakota.(p. 178)