School districts’ attorneys formally petition South Dakota board over substitute teachers

Capitol News Bureau

PIERRE, S.D. (KELO) — South Dakota K-12 school districts will face hiring problems under new regulations that limit how long they can use substitute teachers who aren’t state certified, a Huron attorney warned Monday.

Rodney Freeman, speaking on behalf of South Dakota’s school attorneys organization, made his comments to the state Board of Education Standards.

He said the state Department of Education has taken “a very firm position” that schools can use non-certified substitutes only when the regular teacher intends to return. If there’s a violation, the school principal and the district’s superintendent can be charged with breaking the code of ethics, and the school district can be placed on probation and lose accreditation.

He gave three examples:

A school district hires a music teacher, who later quits, and there isn’t a certified music teacher available.

A substitute with an English and history degree but isn’t certified as a teacher can work as a replacement for a teacher who comes down with cancer, but the day the regular teacher dies, the school district is in violation.

A regular teacher can get up to 12 weeks of maternity leave, but the regulations allow a non-certified substitute up to six weeks.

“What are we supposed to do the next six weeks?” Freeman asked.

He continued, “Every district in this state, whether it’s large or small, has difficulty, major obstacles, in trying to find enough substitutes. The rules, the way they’re being interpreted, are creating a terrible burden for many, if not most, of the schools in this state, and the Council of School Attorneys believes it’s going to ultimately hurt children.”

Freeman said the council attempted to find ways to improve the rules rather than just present negatives. “We seriously, after considering it, really don’t feel this board has jurisdiction over non-certified people, which is what substitutes are,” he said.

The attorneys group’s board of directors met May 7 and authorized the filing of a formal petition for the rules to be rescinded, according to Gerry Kaufman of Huron, who recently retired as the lawyer for the Associated School Boards of South Dakota.

The state board passed the regulations in September. They took effect in December. The board now has 30 days to decide whether to deny the petition or schedule a public hearing on it.

“We’re not talking about certified educators when we’re talking about substitutes, whether it’s a long-term sub, whether it’s a short-term sub, they’re not certified,” Kaufman said. “But the law upon which these are based refers to educator certification. So there’s the disconnect that we discovered as we were approaching this issue.”

He added, “I’m not saying whether subs should or shouldn’t be certified. It’s not that. It’s here’s the procedural issue.”

Kaufman said attorneys in the group also found the definition of teacher in state law doesn’t match the definition of teacher in state rule. “There can be a problem, and we live in a world of trying to prevent problems before they arise.”

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