STATEMENT OF JUDITH R. OLSON, PRESIDENT, SOUTH DAKOTA STATE BOARD OF EDUCATION The South Dakota State Board of Education has given careful and thoughtful consideration to the proposed draft regulations implementing P.L. 93-638. I am attaching a copy of a resolution adopted by the Board on September 23, 1975, and previously submitted to your office for consideration at the hearing before your subcommittee on October 20, 1975. I want you to know that the action of the Board should not be interpreted as requesting authority for funds provided by the Federal government for Indian children to be spent on non-Indian education programs. The primary concern of the State Board of Education is to uphold the requirements of South Dakota laws as they relate to the responsibilities of a district school board. At this time the authority of a local board does not have any exceptions relating to the source of funds which they are administering. In fact, it is the responsibility of the various boards of this state to provide an equal educational opportunity to all students within their respective school districts. The Board recognizes the educational problems which have existed for some time relative to Indian children; however, it is felt that a proper solution does not lie in granting the authority to any advisory committee to "approve budget preparation and execution", as contained in 403.16 (a) (1) (ii). The Board is further concerned with the proposal to grant to any advisory group the authority to "nominate a reasonable number of qualified prospective educational programmatic staff members from which the contractor would be required (emphasis supplied) to select." The final area of specified Board concern relates to 403.63, which reads, "State employees may be permitted to enter upon Indian tribal lands, reservations or allotments if the duly constituted governing body of the tribe adopts a resolution of consent." Senator, the State Board of Education is not attempting to prevent meaningful or significant progress in the education of Indian students in South Dakota. This Board has and will support sound, realistic efforts to improve the educational opportunities of any group of students. We urge the Commitee to give thoughtful consideration to any federal regulations which usurps the right of a district school board to make a final decision so long as that board is operating within the laws of South Dakota. We believe other provisions of the proposed draft regulations can be used to correct any alleged inequities which have existed or any that may exist in the future. We are confident your Committee will act in a reasonable and responsible way in your consideration of these concerns. Attachment. State Board of Education Resolution. RESOLUTION Whereas, South Dakota Law 13-8-39 states, "As provided and limited by law, the school board shall have the general charge, direction and management of the schools of the district and care of all property belonging to it and shall have power to levy taxes, borrow money, employ any necessary personnel, to lease real and personal property, carry liability and other insurance, purchase all necessary books and equipment and purchase real property and erect necessary buildings for the operation of such schools"; and Whereas, Indian children, by virtue of their citizenship, in South Dakota, are entitled to a public education comparable with that provided any other citizen of this State; and Whereas, many school districts in South Dakota have an inadequate property tax base for the provision of an educational program which compares favorably with the state average; and Whereas, on April 16, 1934, Congres passed the Johnson-O'Malley Act; and Whereas, this legislation has subsequently been revised and there is now pending P.L. 93-638 draft regulations designed to implement the latest revision of this Act; and Whereas, certain provisions of the proposed draft regulations are contrary to the laws of South Dakota; and Whereas, more specifically, the draft regulations remove from the various duly elected School Board the final authority to approve budgets and see that they are properly executed, to hire qualified prospective educational staff members, evaluate staff performance and approve and disapprove all programs to be contracted; and Whereas, the proposed draft regulations seek to prohibit State employees from entering upon Indian tribal lands, reservations or allotments to visit schools receiving State funds except upon a resolution of permission approved by the duly constituted governing body of the respective tribes which, if enforced, could result in a loss of State accreditation and a subsequent loss of State aid funds; now, therefore, be it Resolved, That the State Board of Education meeting in special session on September 23, 1975 at Buffalo, South Dakota hereby calls upon the Congress of the United States to reject any proposed draft regulation relating to this act or other federal programs which do not recognize the right of an elected school board to make the final decision in those areas provided by the laws of South Dakota; and be it further Resolved, That the State Board of Education recognizes the need for providing an educational program for Indian students which is comparable to all other students in each district and therefore pledges the efforts and resources of the Division of Elementary and Secondary Education to the reasonable resolution of any impediment to the attainment of that goal; be it finally Resolved, That the State Board of Education will support all reasonable efforts to eliminate prejudice or any other negative aspect of education in the State of South Dakota which is under the jurisdiction of the State Board of Education. SOUTH DAKOKA DEPARTMENT OF EDUCATION AND CULTURAL AFFAIRS, To: Senator James Abourezk. Pierre, S. Dak., October 17, 1975. From: Thomas C. Todd, State Superintendent. Subject: Part 43-Education Contracts Under Johnson-O'Malley Act. Your Subcommittee has received a statement and resolution from Mrs. Judy Olson, President of the South Dakota State Board of Education. I concur in the position by President Olson and sincerely request the Senate Subcommittee on Indian Affairs to give great weight to the concerns she has expressed. One of the strengths in American education lies in the belief by the people that they still have a voice in their educational future through the elected process. Any erosion of the right of an elected school board to make the final decision will surely result in an erosion of public confidence in the entire educational process. A realistic alternative would be for the committee to consider the addition of a rule which would provide that either the local education agency or the Indian Education Committee would have the right to appeal a decision which was felt to be detrimental to the best interests of the students which should be served to the State Superintendent who would have the authority to conduct a hearing into the merits of the allegations and issue a ruling in accordance with the findings. This procedure is not without precedent in South Dakota, and perhaps in other states. The problems and concerns of Indian children are real and must be addressed in a forthright and meaningful way. It is my sincere hope that the United States government does not take any step which would ultimately result in a decrease in the educational opportunities of the native Americans whose needs today are so great. This office is available to work with any group whose sincere goals and efforts will result in a better school system in South Dakota. NATIONAL ASSOCIATION OF STATE BOARDS OF EDUCATION, Attention: Public Law 93-638 Task Force (Code 101A). GENTLEMEN: The National Association of State Boards of Education, an organization representing the fifty state boards in the United States, has carefully reviewed the rules proposed to implement Public Law 93-638. We congratulate you for the completeness and detail of those rules. At the same time we take strong exception to several of the proposed rule changes in Part 403 dealing with Educational Contracts under the Johnson-O'Malley Act. Specifically, our concerns are as follows: 403.15 Establishment of Indian Education Committee Clearly the need for Indian parent involvement in the planning and evaluation of school programs impacting their children is essential. However, such committees must be advisory to legally elected and statutorally empowered boards. For the federal government to pass laws undoing two hundred years of state control is a dangerous precedent indeed. We applaud the rules' efforts to guarantee parent involvement; we abhor the rules' proposed circumvention of state control and local board control and urge the alteration of this entire section to ensure that Indian Education Committees remain advisory to the local board. 403.16 (a)(1) “Participate fully in the planning, development, implementation . . . etc." This subsection must clearly state that such involvement is advisory only. As it reads now we believe that this subsection would clearly circumvent the legal authority of local boards if that board was not comprised of a majority of Indians. Certainly we respect the desire of any race to have the right of self-determination. If the intent of this legislation had been to circumvent the state's authority of local boards not comprised of a majority of Indian parents, such intent should have been stated clearly in the legislation or the floor debate surrounding that legislation. We object most vigorously whenever proposed agency or department rules go beyond legislative intent or seek to circumvent state control. It is our judgment that this proposed rule would do exactly that. (a) (1) (ii) “Approve budget preparation and execution." Again the Indian Education Committee certainly has the right to advise the local board of its recommendation for a budget and to raise questions about the use of funds. However, we strongly oppose giving any committee budget control when that authority is already vested in a legally constituted body, i.e., a local board of education. (a) (1) (iv) “Nominate a reasonable number of qualified prospective educational programmatic staff members from which the contractor would be required to select." While we could support a proposed rule which would give the Indian Education Committee involvement in the personnel selection process, this proposed rule goes much too far. We adamantly object to the circumvention of the legally constituted local board. An Indian Education Committee certainly could nominate personnel, encourage personnel to apply and even assist in the interview process. However, to restrict selection to the Indian Education Committee's nominations is completely unacceptable. (a) (1) (v) “Evaluate staff performance and program results and recommend appropriate action to the contractor." Once again this proposed rule circumvents the legal powers of the local board. The Education Committee's involvement in these activities must be advisory only. (2) "Approve and disapprove all programs to be contracted under this Part." State Boards of Education establish basic program standards in all but one state. As we read this proposed rule the local committee is vested with the authority to approve contracts. This rule should clearly state that contracted programs must be in full compliance with state board and SEA policies, rules and regulations. Basic programs for Indian children seem an appropriate matter upon which an Indian Education Committee could comment and give recommendation to a local board; they should not, however, have final approval or disapproval authority over supplemental programs for Indian children. (4) (b) (1) through (8). We believe the Indian Education Committee may be properly involved in a wide range of activities, so long as they do not circumvent the legal powers of the state or local board of education. To preclude jurisdictional disputes between a board and the Indian Education Committee, we believe both bodies should agree in writing to the procedures and duties suggested by the subsections (4) (b) (1) through (8). 403.53 We would hope that the cooperative relationship between a tribal body and state officials never became so strained that permission to inspect the schools or enforce state compulsory school attendance laws were denied. But what if per mission were denied? What then? Additionally, access to the public schools by state officials regardless of their location, to carry out their statutory and regulatory responsibilities is necessary for reasons which go beyond the two listed in this section. Have department of education officials been contacted on this? Perhaps they should be before this is finalized. We suggest that this subsection be changed to allow access to local and state educational personnel for the purposes of carrying out their statutory and regulatory responsibilities. We trust that our input is helpful and will be considered most seriously. DR. WESLEY APKER, Executive Secretary. DEPARTMENT OF EDUCATION AND CULTURAL AFFAIRS, TO WHOM IT MAY CONCERN: The administrative offices in Pierre have reviewed the various methods of determining the local contribution rate of the various schools affected by P.L. 874 activities. To the best of our knowledge the State Group Rate furnishes the most advantageous funding rate for our schools. NORRIS M. PAULSON, Assistant Superintendent, Federal Programs. Senator ABOUREZK. I want to thank all the witnesses and panels that appeared here today. I think we've learned a great deal about these regulations. The hearing is adjourned. [Whereupon, at 12:10 p.m., the hearing was adjourned, to reconvene Tuesday, October 28, 1975.] IMPLEMENTATION OF PUBLIC LAW 93-638, THE INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT TUESDAY, OCTOBER 28, 1975 U.S. SENATE, SUBCOMMITTEE ON INDIAN AFFAIRS OF THE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, Washington, D.C. The subcommittee met, pursuant to notice, at 9:30 a.m., in room 3110, Also present: Forrest Gerard, professional staff member. OPENING STATEMENT OF HON. DEWEY F. BARTLETT, A U.S. SENATOR FROM THE STATE OF OKLAHOMA Senator BARTLETT. The hearing today is a continuation of committee oversight hearings on the rules and regulations promulgated by the administration to implement Public Law 93-638, the Indian SelfDetermination and Education Assistant Act. On October 20, 1975, representatives from several major Indian organizations testified before the committee and presented their views and recommendations with respect to the Public Law 93-638 rules and regulations. A conflict on that day prevented my being here, however, I have reviewed the record and I was highly impressed with the Indian community's testimony. It was comprehensive and addressed to substantive issues related to the subject matter. A summary of the Indian testimony has been made available to both Departments; I am hopeful that the witnesses have studied the summary since several of my questions have been derived from this source. The format today will be as follows: HEW witnesses will present their testimony followed by Interior. I will then ask the lead witness from each Department to return to the table at which time I will begin the questioning. Welcome, Mr. Secretary. (457) |