In 1966 South Dakota, if a family lived 5.5 miles from the nearest grade school in their common school district but their elementary child instead attended an independent district 17 miles away (where their high school siblings went), did the common school district have to pay transportation or tuition for the elementary child?
Plain-English summary
A 1966 fact pattern: child X, a grade-school age student, lived 5.5 miles from the nearest school in his resident common school district. His older siblings attended high school 17 miles away in an independent school district. The common school district furnished neither transportation nor board-and-room allowance for the high school students. The State's Attorney asked whether the common district had legal obligations for either group.
The AG split the analysis:
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High school transportation was discretionary. SDC 1960 Supp. 15.3009(3) gave the school board, not the voters, sole discretion over whether to furnish transportation or board-and-room allowance for high school students attending out of district. The board had decided not to. So no obligation for the high school students.
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Elementary school transportation depended on assignment. The AG had previously ruled that a common district must furnish transportation (or board-and-room) for elementary students. But several conditions affected the obligation:
- If the district furnished bus transportation to a designated school and the stop was near the home, the obligation was satisfied; parents who declined to use the bus could not claim a payment instead.
- If the elementary student had been assigned to a particular school by the district, the obligation to pay transportation and tuition for attendance at that school was fixed; attendance at a different school would not generate any legal entitlement.
- If no assignment had been made and no bus service furnished, an "implied assignment" to the school the child actually attended could create a transportation-and-tuition obligation. But once the district affirmatively assigned the child elsewhere, the implied-assignment theory disappeared. -
No moral-obligation theory could justify transportation payments. School funds were public funds; they could be spent only on legal obligations. If transportation for the grade school child was not legally required, the board could not authorize payment "because the parents are inconvenienced." The grade school child either had a legal entitlement (under one of the conditions above) or did not.
The AG also reminded the State's Attorney of the seven-cents-per-mile, $250 ceiling under SDC 1960 Supp. 15.3310, and the rule that only one transportation payment could be made when all the students attended schools in the same vicinity.
Currency note
This opinion was issued in 1966 (approximate, based on prior opinions referenced in the text dated 1965-1966). 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 school transportation framework is in SDCL Title 13 and is substantially different from the 1960s SDC Supplement system this opinion construes.
What the opinion meant at the time
The opinion reflected the rural South Dakota education landscape in 1966: common school districts (often small, K-8) and independent districts (typically K-12 or operating just the high school) were both common, and many families had children spread across both. Common districts had to consider transportation obligations that crossed into other districts when an elementary student followed older siblings to a non-resident school.
The legal framework gave school boards significant discretion. High school transportation was wholly the board's call. Elementary transportation was nominally an obligation but conditional on factors the board controlled (whether to assign, whether to provide a bus route). The combined effect was that boards could shape their transportation obligations by choosing how and where to assign children.
The "implied assignment" doctrine was the most generous reading for parents: a district that did neither (no formal assignment, no bus route) effectively conceded that wherever the child went was the assignment. The AG used a contrasting prior opinion to draw the doctrine narrowly: once a district affirmatively assigned a child to a school, the implied-assignment claim died.
The hard line on "moral obligation" was important. South Dakota school boards in the 1960s were often pressed by parents to make payments on equitable grounds. The AG's rule was that public funds could not lawfully be spent on moral grounds alone. This rule shaped how boards responded to parent claims throughout the era.
Common questions
Q: Is this opinion still good law?
A: Not directly. SDC 1960 Supp. 15.3009 and 15.3310 have been replaced by modern SDCL Title 13 provisions. The general principles, that high school transportation outside the district is largely board discretion, and that public funds cannot be spent on equitable grounds without legal authority, persist in some form, but the specific assignment rules and reimbursement formulas have changed many times.
Q: What was the difference between a 'common school district' and an 'independent school district' in 1966?
A: A common school district typically operated grades 1-8 (or earlier, only some grades) and was a smaller district covering rural territory. An independent district operated a full 12-year program (grades 1-12) or at least an accredited high school. Common districts and independents often coexisted in a county, with common districts sending their high-school-age children to nearby independents for tuition. Modern South Dakota has largely consolidated these into K-12 districts.
Q: What was the $250 transportation cap?
A: SDC 1960 Supp. 15.3310 capped reimbursement at seven cents per mile, not to exceed $250 per family per school year. In 1966 dollars this was a meaningful sum, but it was an absolute ceiling per family regardless of the number of children or actual miles.
Q: Why couldn't a board pay on moral grounds?
A: The principle that public funds may only be spent for public purposes authorized by law goes back to the SD Constitution and to long-standing common law on the powers of public corporations. A board paying on equitable grounds outside statutory authority would expose itself to an ultra vires challenge and the board members to potential personal liability for unauthorized payment.
Q: How were 'implied assignments' decided?
A: The implied-assignment doctrine drew on a 1965 opinion to Hutchinson County State's Attorney E. W. Hertz and a 1963-64 AGR opinion at page 229. The doctrine looked at whether the district had taken any affirmative steps that would foreclose attendance at the school the child actually attended. If not, the school the child attended was presumed to be the district's chosen assignment by default. A later assignment to a different school broke the implied assignment.
Background and statutory framework
In 1966, South Dakota's school transportation framework in the SDC 1960 Supplement combined statutory obligation (for elementary students) with broad board discretion (for high school students). The framework was built around the home district as the responsible unit, with separate rules for cross-district attendance and tuition.
SDC 1960 Supp. 15.3009 had several subdivisions. Subdivision (1) addressed regular elementary transportation; subdivision (3) gave school boards discretion over high school transportation and board-and-room allowance. SDC 1960 Supp. 15.3310 set the $250 / 7-cents-per-mile cap. The AG's prior opinions, cited throughout this opinion, built a body of practical guidance: bus service satisfies the obligation, formal assignment fixes the obligation, implied assignment fills gaps, moral-obligation arguments fail. Boards in the 1960s relied heavily on AG opinions to navigate these questions because case law was thin.
The opinion concludes with practical instructions: only one transportation payment per same-vicinity attendance, and the $250 ceiling. Those operational rules helped bookkeepers calculate the right payment when the obligation existed at all.
Citations and references
Statutes:
- SDC 1960 Supp. 15.3009 (transportation)
- SDC 1960 Supp. 15.3009(3) (high school transportation discretion)
- SDC 1960 Supp. 15.3310 (transportation ceiling: 7 cents/mile, $250 limit)
Cases: None cited.
Prior AG opinions referenced:
- Opinion of July 19, 1966 to James Hare, State's Attorney of Hand County
- Opinion of July 23, 1965 to E. W. Hertz, State's Attorney of Hutchinson County
- Opinion of March 14, 1966 to Robert C. Bakewell, Jr., State's Attorney of Custer County
- Opinion of October 7, 1965 to State's Attorney Meidinger
- 1963-64 AGR, pages 229, 303, 326, 371
Source
Original opinion text
Schools & School Districts. Transportation allowance for elementary and high school students.
You have requested my opinion relative to the following factual situation:
"Grade school child X resides five and one half miles from the nearest school operated by his resident common school district. There is another school operated by the resident district which is farther away from X's residence. In X's home are high school students who attend a high school operated by an independent school district some seventeen miles from the residence. The common school district furnished neither transportation nor board and room allowance for such high school students."
Based upon this factual situation, you have asked the following questions:
"1. Is the common school district required to pay transportation or board and room in lieu of transportation for the high school students attending the independent district?
"2. In view of the distance the grade school child lives from the nearest school in the common district, is the common district required to pay transportation and/or tuition to the independent district where the grade school child is attending school?
"3. If the answer to the above question is that transportation for the grade school child cannot be collected or charged for attending the independent school, then, in such an event, can the parent collect transportation for mileage to the nearest common school in the district although the child does not attended there but by choice goes to the independent district with the high school children?"
In answer to Question No. 1 it is settled that the granting or withholding of transportation, or board and room in lieu of transportation for high school students, lies within the sound discretion of the governing body of the home school district. SDC 1960 Supp. 15.3009(3) as amended. See my opinion of July 19, 1966 to James Hare, State's Attorney of Hand County, and the decisions reported in 1963-64 AGR, pages 303 and 326. Also: in connection with Question No. 1, your attention is called to my opinion of July 23, 1965 to E. W. Hertz, State's Attorney of Hutchinson County, and the opinion reported in 1963-64 AGR wherein I ruled that the decisions to furnish transportation to high school students is left in the discretion of the school board and not the electors within such district. As the resident school district has not elected to furnish transportation or board and room allowances in lieu of transportation for the high school students, the answer to question number 1 must be "NO".
In answer to Question No. 2, I should advise that you have not stated sufficient facts for me to give you a precise answer to your question. I can, however, advise you as to the status of the law and from this you should be able to determine the proper answer.
A reading of the opinions cited under Question No. 1 will show that there is an obligation on the part of the school district to furnish transportation to elementary school children, or in lieu of transportation, a board and room allowance. However, such transportation, within the discretion of the school board, may be in the form of bus transportation. If bus transportation is furnished and available, and the bus stop is at or near the home of X, the school district's obligation is satisfied, and there can be no transportation payments made because the parents of X do not take advantage of such facilities. See my opinion to James I. Hare of July 19, 1966; my opinion of March 14, 1966 to Robert C. Bakewell, Jr., State's Attorney of Custer County; my opinion of July 23, 1965 to E. W. Hertz and the opinion reported in 1963-64 AGR 229.
I have also ruled that there is no obligation to pay transportation until the elementary school child is assigned to the school attended. 1963-64 AGR 371.
The factual situation may show that there has been no assignment of the pupil to any school, and no bus service furnished. In this situation, I believe the factual situation presented in regard to tuition is applicable, and you are directed to read my opinion of October 7, 1965 to State's Attorney Meidinger. In that opinion I held that in the absence of such bus transportation, assignment, and an official denial that the child should attend such school, that there was an implied assignment which would support the legal obligation to pay tuition. However, you will notice that in that opinion the factual situation showed that after school had commenced, and the child enrolled in the Leola school, that the child was assigned to the Wetonka School, and therefore there was no legal obligation to pay tuition to the Leola school because there was no assignment to that school.
With this background of the law covering transportation, or the payment of board and room allowance in lieu of transportation, you must discover the answer to the following questions:
First: Was the elementary school child assigned to the school he is now attending?
Second: If the student was not assigned to such school, was he assigned to another school?
Third: Does the school district furnish bus transportation to a designated school for such child?
Fourth: Has there been an implied assignment of such child to any school within or without the home district?
If the elementary school child has been assigned to a school other than the one he is attending, or if bus transportation is furnished to a designated school, there is no legal obligation to furnish transportation for his attendance in the independent school where the older children go to high school. On the other hand, if the child has been assigned to the school where he is attending, the obligation to pay transportation and tuition is fixed. If there has been no assignment of the child to the attended school or any other school, there may be an implied assignment to such school, and in such event transportation and tuition payments would be a legal obligation of the district. This statement must be tempered with the realization that the assignment of such student to any other school, even after school commenced, would immediately destroy the legal obligation to pay transportation and tuition.
I am certain that with the guidelines stated that you can, after an examination of the complete factual situation, determine the propriety of the transportation payment.
On the assumption that you ascertain that transportation payments are a legal obligation of the school district, you are cautioned that only one transportation payment can be made if all of the students attended the school in the same vicinity. You are also cautioned to consider the seven (7) cents a mile, two hundred fifty dollar limitation on transportation as provided in SDC 1960 supp. 15.3310.
In answer to Question No. 3, it is my opinion that if transportation is not a legal obligation of the school district, it would be improper for the governing board to authorize its payments on the theory that it had a moral obligation to make such payments. School funds are public funds, which should never be extended except in payment of legal obligations of the school district. By this I mean to say that if the elementary child is assigned to a school other than where he is attending, or if he is not taking advantage of bus service furnished to another school, no public funds should be expended in furnishing transportation because of an alleged moral obligation so to do. Likewise, unless the board determined to furnish transportation to all of its children attending high school, it should not furnish transportation to the high school children here involved upon any theory that there was a moral obligation to so expend funds.