In 1960s South Dakota, when a school district operated a kindergarten, was a kindergarten student treated as an elementary student for purposes of school bus transportation reimbursement?
Plain-English summary
The Brookings Independent School District No. 122 operated a kindergarten as part of its public school program under SDC 1960 Supp. 15.3012. Kindergarten attendance was not mandatory; some families enrolled their children and some did not. The question came up whether a kindergarten student who lived more than three miles from the school was entitled to transportation reimbursement under SDC 1960 Supp. 15.3009. That question turned on whether a "kindergarten student" counted as an "elementary student" under the state's school transportation rules.
The AG concluded that the term "elementary school" generally referred to grades one through eight. But where a school district chose to operate a kindergarten, the same district was required by statute to charge nonresident kindergarten students the same tuition rate as elementary students, under SDC 1960 Supp. 15.3305 as amended by Chapter 54 of the 1965 Session Laws. Reading the tuition and the transportation provisions together, the AG concluded that a kindergarten student was an elementary student for both purposes, and therefore entitled to the same transportation eligibility under SDC 1960 Supp. 15.3309 and 15.3310.
The opinion drew additional support from the state-aid statute, SDC 1960 Supp. 15.2246(4) (as amended by Ch. 77, S.L. 1963), which counted "grades kindergarten through eight" for classroom-unit entitlement, and from SDC 1960 Supp. 15.2002 (as amended by Ch. 42, S.L. 1965), which defined an independent school district as one operating a twelve-year program "with or without a kindergarten." The references reinforced the AG's reading that the legislature considered kindergarten part of the elementary program where a district chose to operate one.
Currency note
This opinion was issued in 1966 (approximate, based on session-law references). Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. South Dakota's modern education code (SDCL Title 13) has reorganized school transportation and kindergarten provisions substantially since the SDC 1960 Supp. citations used in this opinion.
What the opinion meant at the time
At the time, kindergarten was an optional program, both for districts to offer and for families to enroll their children. The legal question carried real consequences for rural districts. Brookings' bus drivers were already picking kindergartners up in the morning but not returning them home midday because the kindergarten ran a half-day schedule. The AG's reading meant a kindergarten student who lived more than three miles from school had a statutory hook for transportation eligibility on the same footing as a grade-one student. Districts that did not want to extend transportation could still decline to operate a kindergarten in the first place. But once they offered the program, they had to provide elementary-equivalent service.
The reading also supported then-current state-aid math. SDC 1960 Supp. 15.2246(4) folded kindergarten into the classroom-unit count for grades K through 8 for aid purposes, so the same district that had to bus the children also got state-aid credit for the unit.
Common questions
Q: Is this opinion still good law?
A: Not directly. The statutes the opinion construed (the SDC 1960 Supp. series) have been recodified as SDCL Title 13 with substantial reorganization. The general principle, that kindergarten programs offered by a district are typically treated as part of the elementary program for funding and service purposes, has been carried forward in modern South Dakota school law, but specific transportation rules, mileage thresholds, and reimbursement formulas have changed multiple times. Anyone acting on a transportation issue should verify against current SDCL Title 13 chapters and current Department of Education rules.
Q: Why was the AG asked the question in the first place?
A: The Brookings district was running buses to school in the morning for kindergarten students but not running buses home at the midday end of the half-day kindergarten session. The district presumably wanted to know whether it was at risk of a transportation-funding clawback or a parent claim for failing to provide elementary-equivalent service. The AG opinion supports the parents' position.
Q: Was kindergarten mandatory in South Dakota in 1966?
A: No. Under SDC 1960 Supp. 15.3002, a child became eligible for kindergarten one year before the elementary eligibility age, but enrollment was not compulsory and a district was not required to operate a kindergarten. The school board had discretion under SDC 1960 Supp. 15.3012 to choose whether to operate one.
Q: Did the opinion address private kindergartens or only public?
A: The opinion addressed kindergartens operated by a public school district as part of its program. Private kindergartens and nursery programs were outside the statutory framework discussed.
Background and statutory framework
In 1966, South Dakota's school code distinguished between optional and required programs. Elementary (grades 1-8) and secondary (9-12) were the core of the public school free-tuition guarantee under SDC 1960 Supp. 15.3001. Kindergarten and nursery school were optional add-ons that a school board could maintain "as a part of the public school" under SDC 1960 Supp. 15.3012, with the State Superintendent of Public Instruction having controlling authority. Nonresident students attending a district's program paid tuition under SDC 1960 Supp. 15.3304, and the 1965 amendment to SDC 1960 Supp. 15.3305 explicitly set the nonresident tuition rate for "an elementary school program, including kindergarten and nursery schools" at 85% of the adjusted state daily per-pupil cost.
That parallel treatment of kindergarten and elementary in the tuition statute is the textual hook the AG used. The legislature was treating kindergarten as elementary where a district chose to operate it. Without that explicit pairing, the AG conceded that "elementary student" by itself would have referred to grades one through eight, and kindergartners would have been left outside the transportation entitlement.
State-aid reform around the same period (Ch. 77, S.L. 1963 amending SDC 1960 Supp. 15.2246) was moving in the same direction: classroom-unit entitlement for "lower grade pupils" was defined as "grades kindergarten through eight." The legislature was steadily folding kindergarten into the elementary tent for purposes of state subsidy. The transportation entitlement followed the same path.
Citations and references
Statutes (as cited in the opinion, all SDC 1960 Supp.):
- 15.3001 (free public school privileges)
- 15.3002 (kindergarten admission age)
- 15.3009 (transportation reimbursement)
- 15.3012 (school board authority to maintain kindergartens)
- 15.3304 (tuition for non-free students)
- 15.3305, as amended by Ch. 54, S.L. 1965 (nonresident tuition rate)
- 15.3309, 15.3310 (transportation eligibility)
- 15.2002, as amended by Ch. 42, S.L. 1965 (independent school district definition)
- 15.2246(4), as amended by Ch. 77, S.L. 1963 (classroom-unit entitlement)
Cases: None cited.
Source
Original opinion text
Schools and School Districts. Transportation for Kindergarten Students.
You have requested an opinion based upon the following factual situation:
'The Brookings Independent School District No. 122 of Brookings County, South Dakota, has established and operated a kindergarten in its public school system for the past several years pursuant to the provisions of SDC 1960 Supp. 15.3012. All children residing in the district are eligible for attendance at kindergarten one year before said children are eligible to be enrolled in the elementary school, SDC 1960 Supp. 15.3002.
"However, such enrollment in kindergarten is not mandatory and there are families residing in the district who do not send their children to kindergarten. The question has now been raised as to whether a kindergarten student who attends a kindergarten school situated more than three miles from his residence is entitled to transportation reimbursement pursuant to the provisions of SDC 1960 Supp. 15.3009 (1). This matter seems to hinge upon whether or not a kindergarten student is to be classified as an elementary student under the laws of this State.
"The Independent School District school buses do pick up kindergarten students on the morning bus schedules but do not return kindergarten students home at the end of the morning session."
Your specific inquiry is whether the term "elementary student" includes a kindergarten student as such term is used in SDC 1960 Supp. 15.3002 and 15.3309.
SDC 1960 Supp. 15.3002 reads in part as follows:
"...A child shall become eligible for admittance to a kindergarten one year before said child is eligible to be enrolled in the elementary school..."
SDC 1960 Supp. 15.3012 reads as follows:
"The school board of any school district may maintain as a part of the public school adult education classes, summer schools, kindergartens, and nurseries under the regulations and standards as established by the State Board of Education. The State Superintendent of Public Instruction shall have controlling and directing authority over all such programs."
SDC 1960 Supp. 15.3304 provides in part as follows:
"All nursery, kindergarten, elementary, and secondary students not entitled to the free school privileges of the district wherein they are enrolled shall be charged the legal rate of tuition as hereinafter provided..."
SDC 1960 Supp. 15.3305 as last amended by Chapter 54, Session Laws of 1965, reads in part as follows:
"The daily legal rate for tuition to be charged by the school board for a nonresident pupil enrolled in an elementary school program, including kindergarten and nursery schools, shall be eighty-five (85) per cent of the adjusted state daily per pupil cost for the preceding school fiscal year determined as provided herein."
I am unable to find any specific statute that specifically defines an "elementary student," however, you will note that kindergarten students are to be charged the same tuition rate as other students enrolled in an elementary school program.
SDC 1960 Supp. 15.3001 reads in part as follows:
"The privileges of the public schools of any district shall be free to all persons with school residence within the district until they complete the secondary school program or until they reach the age of twenty-one..."
It is my opinion that in general the terms "elementary school" and "elementary student" refers to grades one through eight; however, since school districts are authorized to operate kindergartens and when they do so operate, they are required by statute to charge nonresident students the same tuition rate as elementary students. It is therefore my opinion, when a school district does provide kindergarten facilities, that the students attending such facilities should be considered as elementary students and be eligible to the same transportation privileges as elementary students under SDC 1960 Supp. 15.3309 and 15.3310.
In support of this position, although not specifically in point, see subsection (4) of SDC 1960 Supp. 15.2246 as last amended by Chapter 77, Session Laws of 1963, which is the state aid statute and reads in part as follows:
"(4) The classroom unit entitlement of a school district which operates an educational program for lower grade pupils, which includes grades kindergarten through eight, shall be determined as provided in table one in this subsection. The classroom unit entitlement of a school district which operates an educational program for upper grade pupils, which shall include grades nine through twelve, shall be determined as provided in table two of this subsection..."
SDC 1960 Supp. 15.2002 as last amended by Chapter 42, Session Laws of 1965 reads in part as follows:
"...An independent school district is defined as that district which operates a twelve year school program (with or without a kindergarten) or an accredited high school..."