South Dakota

Resources

State Protections and Legal Framework

  • State constitutional guarantees regarding right to education 

    Under Article VIII – Education and School Lands.

    • Section 1 - Establishment and Maintenance of Schools (https://sdlegislature.gov/Constitution/8-1)

      • "The stability of a republican form of government depending on the morality and intelligence of the people, it shall be the duty of the Legislature to establish and maintain a general and uniform system of public schools wherein tuition shall be without charge and equally open to all; and to adopt all suitable means to secure to the people the advantages and opportunities of education."

      • This section guarantees:

        • A general and uniform system of public schools;

        • Free tuition for public education; and

        • Equal access to education for all residents.

    • Section 2 – Perpetual School Fund (https://sdlegislature.gov/Constitution/8-2) 

      • Establishes a permanent school fund derived from the sale or lease of public lands granted by the federal government, with the interest used to support public schools.

    • Section 3 – Use of School Funds (https://sdlegislature.gov/Constitution/8-2)

      • Mandates that school funds be used exclusively for the support of public schools.

    • Section 15 – Prohibition of Sectarian Instruction (https://sdlegislature.gov/Constitution/8-15) 

      • "No sectarian instruction shall be imparted or tolerated in any school or institution which may be established under this Constitution."

      • This ensures the separation of church and state in public education.

    Case law and legislative history defining and interpreting the right to education:

    • Davis v. State of South Dakota, 804 N.W.2d 618 (S.D. 2011) (https://law.justia.com/cases/south-dakota/supreme-court/2011/25330.html), where a group of parents and children challenged the constitutionality of South Dakota’s public school funding system in response to a cost study commissioned by the coalition which reported that the state’s schools were under-funded by $133 to $400 million. (https://cee.tc.columbia.edu/schoolfundinginfo/states/south-dakota/)

      • The Court emphasized deference to the Legislature in determining what constitutes “adequate” education.

      • It did not set a specific standard for adequacy but implied that as long as basic educational services are provided, the system meets constitutional requirements.

      • The Supreme Court held that the plaintiffs had not met their high burden of demonstrating beyond a reasonable doubt that the current system was unconstitutional.

    State constitutional protections regarding non-discrimination and equity:

    While South Dakota does not have a stand-alone Equal Rights Amendment (https://www.brennancenter.org/our-work/research-reports/state-level-equal-rights-amendments), it does have certain civil rights protections in Article VI of its Constitution(https://sdsos.gov/2023SouthDakotaConstitution20220124.pdf) :

    • Section 2 – Due Process and Equal Protection

      • “No personal shall be deprived of life, liberty or property without due process of law. The right of persons to work shall not be denied or abridge on account of membership or non-membership in any labor union, or labor organization.” 

    • Section 3 – Religious Freedom

      • Prohibits laws that establish religion or impede its free exercise.

    • Section 18 – Equal privileges or immunities

    “No law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.”

  • South Dakota has various laws and policies in place to protect against discriminatory practices:

    • South Dakota Human Relations Act of 1972: These include the state’s Human Rights Act, which prohibits discrimination on the basis of religion, race, color, sex, national origin, age, disability, and ancestry in employment, housing, credit and public accommodations.

    • Religious Freedom Restoration Act (RFRA): Protects individuals from having their religious beliefs substantially burdened by state or local governments. In cases where conflicts arise between these two laws, the courts will determine the balance between protecting an individual’s religious freedom and ensuring equal treatment for all individuals under the law. (https://www.hrc.org/press-releases/south-dakota-gov-kristi-noem-signs-religious-refusal-bill-creating-first-major-rfra-law-in-six-years)

    • Anti-Discrimination Laws: South Dakota Codified Law (SDCL) Chapter 20, Section 13.

      • Generally: Prohibits discrimination because of race, color, creed, religion, sex, ancestry, disability or national origin. ( https://sdlegislature.gov/Statutes/20-13-10)

        • Applies to all educational institutions in South Dakota, including K-12 schools and higher education.

      • Educational Discrimination: It is “an unfair or discriminatory practice for any educational institution to:

        • Discriminate in services, benefits, or admissions;

        • Exclude, expel, or limit students based on protected characteristics; or

        • Use application forms or inquiries to elicit information about protected characteristics, except as allowed by regulation.

                                               (https://sdlegislature.gov/Statutes/20-13-22)

    • Retaliation: It is also illegal for any person to discriminate or retaliate against someone because he or she has:

      • Filed a complaint with the Division of Human Rights;

      • Testified on a matter before the Division of Human Rights; or

      • Assisted the Division of Human Rights in carrying out the purposes of the law. (https://sdlegislature.gov/Statutes/60-12-21)

    • Concealing, aiding, compelling, or inducing unlawful discrimination--Threats or reprisals (https://sdlegislature.gov/Statutes/20-13-26): 

      • It is an unfair or discriminatory practice for any person, directly or indirectly; to conceal, aid, abet, compel coerce, incite, facilitate or induce any unlawful discrimination.

      • Retaliation: It is illegal to engage in or threaten to engage in any reprisal, economic or otherwise, against any person by reason of the latter's filing a charge, testifying or assisting in the observance and support of the purposes and provisions of this chapter.

    • Exceptions:

      • Segregation by sex in athletics is not considered discrimination if opportunities are substantially equal.

      • Bona fide religious institutions may be exempt if religious qualifications are related to a bona fide religious purpose. (https://sdlegislature.gov/Statutes/20-13-18) 

    • General - SDCL 20-13 (subsections 1-56): This chapter is South Dakota’s primary civil rights statute:

      • Prohibits discrimination based on race, color, creed, religion, sex, ancestry, disability, or national origin in employment, housing, education, public accommodations, and services. (https://sdlegislature.gov/statutes/20-13) 

      • Defines unfair practices and outlines complaint procedures, enforcement powers, and remedies.

      • Includes private right of action provisions (e.g., SDCL 20-13-35.1) allowing individuals to sue in court instead of pursuing administrative hearings.

      • Disparate impact is not explicitly addressed; enforcement focuses on intentional discrimination.


    • Municipal & County - SDCL 20-12 (https://sdlegislature.gov/Statutes/20-12)

      • This statute empowers local governments to adopt ordinances that prohibit discrimination in housing, employment, and public accommodations. It allows for local enforcement mechanisms and supplements state-level protections.

    • State law equivalents to Title VI, Title IX, Section 504, and the Educational Opportunities Act (EEOA) - South Dakota enforces equivalents to key federal civil rights laws:

      • Title VI: SDCL 20-13 and agency policies prohibit discrimination based on race, color, and national origin in federally funded programs. (https://dot.sd.gov/programs-services/civil-rights/title-vi)

      • Title IX: Enforced through SD DOE reviews and federal compliance requirements.(https://doe.sd.gov/oatq/civilrights.aspx)

      • Section 504: Incorporated into state education and transportation policies to protect individuals with disabilities. 

      • EEOA: While not directly codified, SD DOE enforces access to educational opportunities through civil rights reviews and voluntary compliance plans.

    • South Dakota’s statutes do not explicitly extend protections to:

      • LGBTQ+ students;

      • Multilingual learners; or

      • Undocumented students.

      • However, federal protections (e.g., Title IX, Section 504, and Executive Orders on Limited English Proficiency) are enforced through state agencies like SD DOE and SDDOT.

    • State law protections regarding color of law or pattern/practice liability for law enforcement in schools

      • South Dakota does not have a specific statute addressing color of law violations or pattern/practice liability for law enforcement in schools. Such claims would typically be pursued under federal law for constitutional violations.

    • Private right of action provisions under state civil rights and human rights statutes:

      • SDCL 20-13-35.1 (https://sdlegislature.gov/Statutes/20-13-35.1) allows individuals to bypass administrative hearings and file civil lawsuits directly in court for discrimination claims. Remedies may include injunctive relief, damages, and attorney’s fees.

    Recent Legislation and Policies (including legislation undermining civil rights):

    • Ideological Discrimination in Higher Education: House Bill 1254 (2021) (https://legiscan.com/SD/text/HB1254/202) prohibits discrimination in higher education based on “ideological, political or sectarian opinions or perspectives.” The law applies to employment decisions and other terms or conditions within higher education. 

    • Transgender Facility Access: House Bill 1259 (2025) undermines civil rights and restricts access to multi-occupancy restrooms, changing rooms, and sleeping quarters in public schools and state-owned buildings based on biological sex. The law defines “male” and “female” according to “biology” and requires that facilities be designed exclusively for individuals of the corresponding “biological” sex. The law allows individuals who encounter transgender persons in these facilities to seek legal action against the school or state if officials did not take reasonable steps to prevent the unauthorized use of the facility. (https://southdakotasearchlight.com/briefs/governor-signs-bills-regulating-transgender-bathroom-use-and-requiring-obscenity-appeal-process/) 

    Federal Civil Rights Laws Enforced in South Dakota:

    • Title VI of the Civil Rights Act of 1964: Prohibits discrimination based on race, color, and national origin in programs receiving federal funds. 

    • Title IX of the Education Amendments of 1972: Prohibits sex-based discrimination in educational programs and activities receiving federal financial assistance. 

    • Section 504 of the Rehabilitation Act of 1973: Prohibits disability discrimination in federally funded programs. 

    • Individuals with Disabilities Education Act (IDEA): Guarantees students with disabilities the right to a Free Appropriate Public Education (FAPE) and provides procedural safeguards for parents and students. 

    • Age Discrimination Act of 1975: Prohibits age-based discrimination in programs receiving federal funds. 

    • Americans with Disabilities Act (ADA): Prohibits disability discrimination in public entities, including schools. 

    Protected Classes in South Dakota Education: Race, color, creed, religion, sex, ancestry, disability, national origin, and age. 

  • Standing: While the statute does not explicitly define “student” or “parent,” its application to “any person” affected by discriminatory practices in education implies that both students and their guardians may file complaints.

    Retaliation: South Dakota law explicitly prohibits retaliation. Under SDCL 20-13-26 (https://sdlegislature.gov/Statutes/20-13-26), it is unlawful to retaliate against any person who:

    • Files a discrimination complaint, testifies, assists, or participates in an investigation or hearing.

    • Elements of a Retaliation Claim - While the statute does not spell out the elements in detail, retaliation claims generally require (https://www.ed.gov/media/document/ocr-retaliation-resource-2024-108799.pdf):

      • Protected activity (e.g., filing a complaint);

      • Adverse action (e.g., expulsion, demotion); and

      • Causal connection between the two.

    Statute of Limitations: 180 days after the alleged discriminatory or unfair practice occurred. (https://sdlegislature.gov/Statutes/20-13-31) 

    Areas of Special State Rights Protections: 

    • South Dakota laws generally provide more protections for religious freedom than federal law.

    • Broader coverage of public services and property rights: SDCL 20-13 applies not only to education but also to public services and property rights, which may not be as explicitly covered under federal education statutes.

    • State-level enforcement: Unlike federal laws that rely on OCR or DOJ enforcement, South Dakota provides a state-based complaint mechanism through the Division of Human Rights, which may offer more localized and accessible remedies.

    However, South Dakota does not currently provide:

    • A state-level Equal Rights Amendment (ERA).

    • Explicit protections based on sexual orientation or gender identity in education (though federal Title IX interpretations may apply).

    • A disparate impact standard or private right of action under state law for education-related discrimination. (https://doe.sd.gov/oatq/civilrights.aspx) 

    • The South Dakota Board of Regents adopted a policy in May 2024 prohibiting faculty and staff from including gender pronouns and tribal affiliations in official university email signatures, raising concerns about erasure of cultural and gender identities. (https://apnews.com/article/pronouns-tribal-affiliation-south-dakota-66efb8c6a3c57a6a02da0bf4ed575a5f)

How do I file a complaint about discrimination in a K-12 public school in South Dakota? 

South Dakota Department of Education (SD DOE) Divisions

  • Professional Practices Commissions: 

    These commissions oversee ethical conduct and discipline for educators and administrators. They are empowered under SDCL §§ 13-43-38 to 13-43-59 and ARSD Chapter 24:11 1.

    • Professional Administrators Practices and Standards Commission (PAPSC)

    • Professional Teachers Practices and Standards Commission (PTPSC)

  • Complaint Process: 

    Complaints must be formally submitted using a commission-provided form [link].

  • Requirements:

    • Must identify…

      • The violated section of the Code of Ethics;

      • The name and position of the educator; and

      • Local resolution efforts.

    • Complaints must be based on violations within the past three years.

    • Hearings may be held in person or via conference call, and both parties may present evidence.

  • Resolutions:

    • Dismissal (lack of evidence);

    • Investigation; or

    • Move to a Hearing

      • Issue a private or public reprimand, recommend disciplinary action which may be implemented by the appropriated governing body.

      • Recommend to the Secretary of Education that the certificate be suspended or revoked.

State Attorney General Enforcement Actions

  • Has the AG taken civil rights actions involving education in the past 5 years?

    • Challenge to Federal Transgender Student Policies (2024):

      • In November 2024, South Dakota Attorney General Marty Jackley joined a coalition of state attorneys general in challenging federal directives that required schools to allow students to use facilities corresponding to their gender identity. The coalition argued that these directives imposed undue conditions on education funding and represented federal overreach into state education policy.

    • Clarification on Section 504 and Disability Protections (2025):

      • In February 2025, Attorney General Jackley, along with other attorneys general, issued a clarification to their ongoing litigation concerning Section 504 of the Rehabilitation Act. The clarification emphasized that the state’s intent was not to undermine existing disability protections in education, but to address specific concerns about the inclusion of gender identity-related disorders under the law.

    • One case involving education and civil rights in South Dakota brought by the Federal Attorney General is the federal case, Pedersen v. South Dakota High School Activities Association (2000).

      • This held that the school discriminated against female students on the basis of gender by failing to provide equal opportunity in the area of interscholastic athletics in violation of the Fourteenth Amendment to the Constitution of the United States, and Title IX and the Title IX Implementing Regulations and Policy Interpretation.

    What enforcement powers does the AG possess in education-related cases?

    The AG not have a dedicated civil rights division like some other states;

    • Has general authority to issue legal opinions, represent the state in litigation, and enforce state laws, including those related to discrimination if referred by another agency; and

    • May become involved in education-related matters if a constitutional or statutory violation is alleged and escalated through the courts or legislature.

    • However, routine civil rights enforcement in education—such as investigating discrimination complaints—is not typically within the AG’s direct purview. Rather, that responsibility lies with the Division of Human Rights and federal agencies.

    Does the AG accept individual education civil rights complaints, or does the office only take on broad investigations? (if they do individual complaints, would want to answer the below complaint process questions for the AG’s office)

    The South Dakota AG’s office does not accept or process individual civil rights complaints related to education. Instead, individuals must file complaints with the South Dakota Division of Human Rights.

    The AG may become involved only if a legal dispute escalates to the point of litigation or constitutional challenge.

  • Does the AG have an office/section dedicated to education or education civil rights issues? (If the AG has sections or offices dedicated to education or children's rights issues, please identify that office when responding to relevant questions above and with respect to the complaint process below.)

    The AG Office does not have a dedicated education or children’s rights division, but it has resources and guidance on student rights.

    Enforcement of education-related civil rights is primarily handled by the South Dakota Division of Human Rights and the South Dakota Department of Education.

Other State Enforcement Systems

South Dakota Department of Labor and Regulation: Division of Human Rights

  • The Division of Human Rights (https://drsdlaw.org/be-informed/employment/south-dakota-department-of-labor-and-regulation-division-of-human-rights/) may investigate and study the existence, character, causes, and extent of discrimination in employment, labor unions, housing accommodations, property rights, education, public accommodations, and public services in this state and attempt to eliminate any discrimination by education and conciliation.

    The Commission of Human Rights (https://dlr.sd.gov/human_rights/commission.aspx) is an adjudicative body that operates under the Division. Its role includes:

    1. Holding public hearings when voluntary settlement efforts fail.

    2. Issuing final orders if it finds that discrimination occurred.

    3. Ensuring compliance with anti-discrimination laws through enforceable decisions

  • Eligibility: 

    While the SDDHR does not explicitly restrict who may file, complaints are generally expected to be filed by the person or organization directly affected or their legal representative. In some cases, advocates or attorneys may assist in preparing and submitting the complaint.

    Timeliness: 

    Complaints must be filed within 180 days of the last alleged discriminatory act under state law. (https://sdlegislature.gov/Statutes/20-13-31) If the complaint also falls under federal jurisdiction, you may have up to 300 days to file with the Equal Employment Opportunity Commission (EEOC), due to a work-sharing agreement between the SDDHR and EEOC.

    Filing Complaint: 

    Complainants must fill out this form [link] including their name, respondent’s contact information, identification of the protected class relevant to complaint, and any other supporting documentation. (https://sdlegislature.gov/Statutes/20-13-29) Complaints are typically accepted by mail, fax, or in person.

    • SDDHR does not charge a fee to file a discrimination complaint. If a complainant later decides to pursue the matter in court, standard court filing fees may apply but they can file a Motion to Waive Filing Fee and Service of Process Fee, along with a Financial Affidavit to court. 

    Anonymity, Confidentiality, and Language Access:

  • Elements:

    • Complainant’s information: Name, address, contact info

    • Respondent’s Information: Name, address, contact info

    • Description of Alleged Discrimination: The specific actions or behaviors considered discriminatory, including the dates and locations.

    • Supporting evidence/documentation

    • Verification – must be signed under penalty of perjury.

    Review:

    Initial Review:

    • Complaints are reviewed by a commissioner or agent of the Division of Human Rights. (https://sdlegislature.gov/Statutes/20-13-32)

    • Verification and Service: After a verified complaint is filed, a copy is served by registered or certified mail to the respondent.

    • Preliminary Assessment: The Division reviews the complaint to ensure it falls within its jurisdiction and that all required elements are present.

    Investigation Process:

    If the investigating official determines that probable cause exists to support the allegations, the Division attempts to eliminate the discriminatory practice through conference or conciliation. (https://sdlegislature.gov/Statutes/20-13-32)  

    Dismissal of charge if investigation shows no probable cause (https://sdlegislature.gov/Statutes/20-13-28.1):

    • If the Division of Human Rights determines there is no probable cause to support the allegations of a charge after an investigation of the charge in accordance with § 20-13-28, the division shall issue an order dismissing the charge. This shall be considered a final agency action for purposes of appeal.

    Right to Transfer to Circuit Court (https://sdlegislature.gov/Statutes/20-13-35):

    • If the investigating official is satisfied that further endeavor to settle a charge by conference or conciliation is futile, the official shall report the same to the Commission of Human Rights. If the commission determines that the circumstances warrant, it shall issue a written notice requiring the respondent to answer the charge at a hearing to be set within a reasonable period of time before the commission, a commissioner, or any other person designated by the commission to conduct the hearing, hereinafter referred to as hearing examiner, and at a time and place to be specified in the notice. The notice shall include a statement informing the parties of their right to transfer the matter to circuit court as provided in § 20-13-35.1.

  • Appeals Process:

    After the SDDHR issues a decision, both the complainant and the respondent have rights to appeal or seek further review.

    Election to Proceed by Civil Action: Once the Division issues a notice requiring the respondent to answer the charge, either party has 20 days to elect to have the claims decided in a civil action in state court, rather than proceeding with a hearing before the Commission for Human Rights. If this election is made, the civil action must be filed within one year. Once this election is made, the SDDHR and the Commission lose their jurisdiction over the matter. (https://law.justia.com/codes/south-dakota/title-20/chapter-13/section-20-13-35-1/) 

    Hearing Before Commission: 

    If neither party elects to proceed in court, the matter is scheduled for a public hearing before the South Dakota Commission of Human Rights which consists of five members appointed by the Governor. (https://dlr.sd.gov/human_rights/investigations.aspx) All final orders of the Commission of Human Rights shall be concurred in by at least a majority of the total membership of the commission. ( https://sdlegislature.gov/Statutes/20-13-44)

    Judicial Review: 

    If a party is aggrieved by a final order of the Commission, they may seek judicial review under South Dakota’s Administrative Procedures Act (SDCL Chapters 1-26). The circuit court reviews whether the Commission’s decision was arbitrary, capricious, or unsupported by substantial evidence. (https://sdlegislature.gov/Statutes/20-13-47) The court may allow the prevailing party reasonable attorneys' fees and costs against the respondent. The court also may assess a civil penalty against the respondent in an amount not to exceed ten thousand dollars for willful or repeated violations or refusal to comply with an order of the commission.

    Remedies:

    • Cease and Desist and Affirmative Action order (https://sdlegislature.gov/Statutes/20-13-42): If, upon taking into consideration all the evidence at a hearing, the commission finds that a respondent has engaged in, or is engaging in, any discriminatory or unfair practice as defined in this chapter, the commission shall state its findings of fact and shall issue and cause to be served upon such respondent an order requiring such respondent to cease and desist from such discriminatory or unfair practice and to take such affirmative action such as back pay or other monetary relief.

    • Dismissal (https://sdlegislature.gov/Statutes/20-13-43): If, upon taking into consideration all of the evidence at a hearing, the Commission of Human Rights finds that a respondent has not engaged in such discriminatory or unfair practice, the commission shall state its findings of fact and serve an order dismissing the charge on the charging party and the respondent.

    • Liability of employer for sex discrimination in wages (https://sdlegislature.gov/Statutes/60-12-18): An employer who violates the provisions of § 60-12-15 is liable to an employee affected by the amount of the employee's unpaid wages. The court in the action may in addition to a judgment awarded to the plaintiff, allow a reasonable attorney fee to be paid by the defendant and costs.