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South Dakota

September 12, 2003
HSLDA Seeks Clarification from South Dakota High School Activities Association

September 9, 2003

John Brown
Attorney for South Dakota High School Activities Association
PO Box 280
319 S Coteau
Pierre, SD 57501

Re: Homeschool Sports Participation After Age 16

Dear John:

By way of introduction, the Home School Legal Defense Association is a national organization that has as its primary purpose the protection of the right of parents to educate their children at home. We presently have over 75,000 member families in all 50 states, including over 180 families in South Dakota.

I read an article by Joe Kafka of the Associated Press dated Wednesday, September 3. It quotes you saying there is a question as to "whether a school even has to accept (homeschoolers) that are no longer under the compulsory attendance law."

This question is easily resolved by looking carefully at the homeschool statute. Homeschooling in South Dakota comes under the rubric of "alternative instruction." A minor can receive alternative instruction regardless of his age. Whether he is 2, 3, or 16 or 18, he is permitted to receive alternative instruction.

If a minor is of compulsory attendance age, the parents are required to apply for and obtain an excuse from the local school board in order for alternative instruction to satisfy the compulsory education law. See South Dakota Codified Laws s 13-27-2. However, if a child is below or above compulsory attendance age, his parents do not need this excuse. Nonetheless, they can still provide alternative instruction. The statutes do not define alternative instruction in such a way as to limit to a certain age group.

The new sports access law, SDCL s 13-36-7, hinges participation in a public school sports program upon "receiving alternative instruction pursuant to section 13-27-3." If a minor is "receiving alternative instruction" pursuant to that statute, he or she is eligible to participate in sports. The statute does not require that the students be excused under section 13-27-2. It only requires that the student be receiving alternative instruction as described under section 13-27-3. As noted earlier, a minor can receive alternative instruction even if he or she is younger or older than the compulsory attendance age.

Alternative instruction consists of instruction in the "basic skills of language arts and mathematics" for "an equivalent period of time, as in the public schools." This is set forth in section 13-27-3. Therefore, when a student presents prima facie evidence that he or she is receiving instruction in the basic skills of language arts and mathematics for a period of time equivalent to public schools, he should be allowed to participate in sports pursuant to section 13-36-7.

A simple statement signed by the parents and notarized should be sufficient. If the parents choose to apply for an excuse from the school board, notwithstanding that the child is beyond the age of compulsory attendance, and the excuse is granted, this should also be accepted as evidence of providing equivalent instruction.

I would appreciate it if you would communicate with members of your association and recommend that they not reject a request for an alternative instruction student to obtain access to a sports program simply because he or she has attained the age of 16. I would also appreciate a response indicating your position on this matter so that we can notify our homeschool members in South Dakota.

Sincerely yours,

Scott A. Woodruff, Esq.

SAW/vnm
CC: South Dakota Homeschool Leaders
Tim Creal, Chairman, South Dakota High School Activities Association

 Other Resources

Feb-17-2004—Availability of Sports After Age Sixteen Clarified

Board Wonders If Homeschool Law Conflicts With Attendance Law Sep. 3: Aberdeen News (South Dakota)