South Dakota

Constitutional Provisions

Compelled Support Clause

“[N]o person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship.” South Dakota Const. Art. VI, § 3.

Blaine Amendments

“No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.” South Dakota Const. Art. VI, § 3.

“No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state.” South Dakota Const. Art. VIII, § 16.

Other Relevant Provision

“Notwithstanding the provisions of section 3, Article VI and section 16, Article VIII, the Legislature may authorize the loaning of nonsectarian textbooks to all children of school age.” South Dakota Const. Art. VIII, § 20. 1

Vouchers: No

Tax Credits: Yes

Existing Private School Choice Programs

Partners in Education Tax Credit Program

South Dakota Codified Laws Section 13-65-1 to -12

Relevant Case Law

Pucket v. Hot Springs School District No. 23-2, 526 F.3d 1151 (8th Cir. 2008)

The 8th U.S. Circuit Court of Appeals ruled that the parents of private religious school students did not have standing to challenge the district on its discontinuing the busing of private school students since the district did not have the authority to bus the students.

Elbe v. Yankton Independent School District, 372 N.W.2d 113 (S.D. 1985)

The South Dakota Supreme Court held that South Dakota’s textbook loan program was a violation of South Dakota’s Blaine Amendments and declined to overturn a similar earlier ruling in McDonald v. School Board.

In re N. C. B. Careers, 298 N.W.2d 526 (S.D. 1980)

The South Dakota Supreme Court held that tax exemptions for religious institutions are not the functional equivalent of appropriations and therefore do not violate South Dakota’s Blaine Amendments. Merely relieving the church of an obligation to support the state is not the same thing as the state supporting the church.

McDonald v. School Board, 246 N.W.2d 93 (S.D. 1976)

In holding that a textbook loan program was unconstitutional, the South Dakota Supreme Court concluded that South Dakota’s Blaine Amendments were intended 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.

South Dakota High School Interscholastic Activities Association v. St. Mary’s Inter-Parochial High School, 141 N.W.2d 477 (S.D. 1966)

In holding that private schools can join a public high school athletic association and play on public school fields, the South Dakota Supreme Court reasoned that the state’s Compelled Support Clause and Blaine Amendments were not intended to permit government discrimination against its citizens based on religion.

State ex rel. Finger v. Weedman, 226 N.W. 348 (S.D. 1929)

The South Dakota Supreme Court held that the state school board may not compel students to read from the King James Bible because doing so violates the religious freedom established by the federal and South Dakota Constitutions.

Synod of Dakota v. State, 50 N.W. 632 (S.D. 1891)

The South Dakota Supreme Court held that the state was not obligated to pay for educational services provided by a religious school because doing so would violate South Dakota’s Blaine Amendments. The Court provided a detailed analysis of what it means to “benefit” or “aid” a sectarian institution and explicitly rejected a distinction between aiding students and aiding schools.

S.D. Att’y Gen. Op. No. 92-04 (July 9, 1992)

The school district cannot provide busing for private school children.

S.D. Att’y Gen. Op. No. 87-21 (June 29, 1976)

A private nursing school cannot receive financial assistance.

1992 Opinion Attorney General S.D. 69, Op. No. 92-04

The South Dakota attorney general opined that any statute requiring the transportation of private school students on public school buses would violate South Dakota’s Blaine Amendments because the benefits received by the private schools would be more than “incidental.”

Analysis and Recommendations

Because South Dakota does not have a state income tax, a corporate tax-credit-generated scholarship program is the best school choice option for South Dakota, given the South Dakota Supreme Court’s restrictive interpretation of the state’s Religion Clauses. That Court has explicitly rejected the distinction between aiding students and aiding the schools they choose to attend. By equating the former with the latter, the Court appears to have foreclosed a voucher option. Although Article VIII, Section 20 was later enacted to authorize textbook loans to private school students, the South Dakota Supreme Court cases that prompted the amendment are still good law outside the context of textbook loan programs.

Model Legislation: Education Savings Account, Great Schools Tax Credit Program, Family Education Tax Credit Program

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