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"Probable cause" in South Dakota

A local school district recently demanded that a South Dakota Home School Legal Defense Association member family produce documents to prove that they were in compliance with state law. The only problem is that the law does not authorize the district to make such a demand. Although South Dakota used to authorize school officials to inspect the records of homeschoolers at any time, this law was amended in 1996 to protect homeschoolers' rights.

Under current law, the secretary of the state department of education and cultural affairs may inspect the records of a homeschool "with fourteen days written notice if the secretary has probable cause to believe the program is not in compliance" South Dakota Code 13-27-3. The only records that may be inspected are attendance records and "evidence showing academic progress."

"Probable cause" is an important legal term with very specific meaning. Before any homeschoolers' records can be inspected, the state has the burden of proving it has reliable evidence that the family is not in compliance. Suspicion or an anonymous tip is not sufficient probable cause. School officials have no right to enter homes. Rarely do school officials have sufficient evidence to be able to review any homeschoolers' records.

The South Dakota Department of Education and Cultural Affairs will not request an investigation unless it has a complaint in writing, signed by the person making the complaint. To the best of our knowledge, a vague or "conclusory" complaint is not enough. Thus, the department will not launch an investigation simply because someone says, "those kids aren't learning anything." At the end of each investigation, the department provides the signed copies of the complaint to the family who has been investigated.

This respect for the right of the accused to "confront his accuser" goes a long way to eliminate the bad faith harassment that plagues so many homeschoolers in other states. South Dakota's "probable cause" law and current practice are a model for other states to follow. We encourage any South Dakota families asked by school officials to produce records to contact HSLDA for advice before handing over any records to the school.

Scott W. Somerville