If a small South Dakota independent school district contracts with an Iowa school to send some of its students there for high school, can that same district also send students to a South Dakota '12-year' district under the same kind of contract arrangement? Or does choosing one path lock out the other?

Plain-English summary

Virginia Joint School District 72, a small district split between Lincoln and Union Counties, was on the move. The Lincoln County Board of Education had ordered it attached to Hudson Independent District 3 under Section 15.2018 (4), but the district's patrons had appealed and wanted to be attached instead to Scott District 69 in Union County. Scott District was in the process of reorganizing from a common school district into an independent school district and was planning to send its students to 12-year schools that operated outside the Scott District's own boundaries.

The pattern looked like this: about half the students from District 72 were already attending Hudson (in South Dakota) and the other half were attending Hawarden (just across the line in Iowa). If District 72 was attached to Scott District 69, the question was whether Scott District 69 could keep students going to Hudson on one contract and students going to Hawarden on another, even after the impending statewide referendum on consolidating all South Dakota districts into 12-year districts.

The AG read SDC 1960 Supp. 15.3302 (as amended by Chapter 69 of the 1963 Session Laws) as allowing the proposed arrangements under the statute's conditions. The statute let an independent school board assign and distribute its resident secondary students among the high schools "in the district," and where a student lived more than ten miles from the nearest in-district high school (and the district did not provide bus service or dormitories), the board was required to assign and pay tuition for the student to "any public school or any state institution offering high school subjects in this state or any other state which the student's parent or guardian requests."

The "in-district" qualifier was almost a non-issue here because the statute also said: "School districts entering into contractual agreements herein specified shall be considered as operating a school whether or not the school is located within the boundary of such district." In other words, when a district contracted with another district for secondary services, the receiving district's school was treated as if it were within the contracting district's boundaries.

The AG concluded that Scott District 69 would be subject to the quoted statute. Secondary students living more than ten miles from the school site could attend a school in another district. Whether Scott assigned within-ten-mile students to a school other than Hawarden was discretionary, provided the Hawarden contract imposed no other limits. The opinion did not analyze the effect of the pending referendum.

Currency note

This opinion was issued in 1968. 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. The SDC ch. 15 inter-district tuition and assignment provisions discussed here correspond to modern SDCL Title 13 (Education) and may have been substantially restructured, including the rules for out-of-state tuition contracts. Anyone evaluating an inter-district contract today should consult current statutes and Department of Education guidance.

What the opinion meant at the time

For Scott District 69, the opinion identified the assignment rules relevant to the proposed arrangement. It did not review the terms of either proposed contract. For students within ten miles of the school site, the board's discretion to assign them elsewhere remained subject to any limits in the Hawarden contract.

For parents of District 72 / Scott District 69 students who lived more than ten miles from the nearest in-district high school, the opinion confirmed their statutory right to request the assignment of their child to a specific school (in state or out of state). The district board had no discretion to refuse a parent's request for a qualifying student.

For school boards, the quoted statute treated districts entering the specified contractual agreements as operating a school even when the school was outside the district boundary. The opinion made no finding about how the pending 12-year school referendum would affect that provision.

For the Department of Public Instruction reviewing reorganization plans, the opinion reinforced that contracting districts were treated as "operating" the schools they contracted with for purposes of district status. A district that contracted out all of its high school services was still an operating district, not a defunct one.

Common questions

Q: What if the parent's school of choice (more than ten miles away) had higher tuition than the in-state alternative?
A: The opinion's reading of SDC 1960 Supp. 15.3302 made the parent's request controlling for the more-than-ten-mile students. The district had to pay tuition at the chosen school. There was no statutory cap or "lowest reasonable cost" filter on the parent's choice, though the receiving school had to be a public school or state institution offering high school subjects.

Q: Did the ten-mile rule apply to elementary students?
A: No. SDC 1960 Supp. 15.3302 addressed high school (secondary) students. Elementary assignment was governed by other provisions.

Q: What about a student who lived within ten miles?
A: The district board had discretion to assign within-ten-mile students to any school it contracted with. The parent's preference was not controlling, though the board could honor it if it chose. Other limitations in the contract with the receiving district could narrow the board's choices further.

Q: Could the district refuse to provide bus service to avoid the more-than-ten-mile rule?
A: The opinion did not address that directly, but the statute's "if bus service or dormitories are not provided" framing suggests that providing transportation would let the district keep more-than-ten-mile students within the in-district high school. Whether the district had to actually provide transportation (or could simply opt out and lose the assignment discretion) was a separate question.

Q: What if the parent's chosen school refused to accept the student?
A: The opinion did not address acceptance by the receiving school. The statute's authorization to assign and pay tuition presumed the receiving school's willingness to accept the student under a contract. Without a contract or willingness to accept, the assignment could not proceed.

Q: Did the impending 12-year school referendum change anything?
A: The requester raised that possibility, but the AG did not analyze the referendum or its outcome. It said Scott District would be subject to SDC 1960 Supp. 15.3302 and addressed assignment of students living more or less than ten miles from the school site.

Background and statutory framework

South Dakota's school district landscape in 1968 was a patchwork of common school districts, independent school districts, and joint districts spanning county lines. Many small rural districts lacked the population to support a full high school, so they relied on tuition contracts with neighboring districts to provide secondary education. Cross-border arrangements with a neighboring state (here, Iowa) were common for districts on the state line.

SDC 1960 Supp. 15.3302, as amended by Chapter 69 of the 1963 Session Laws, was the framework provision. It granted independent school boards authority to assign and distribute resident secondary students among the high schools "in the district." Where a student lived more than ten miles from the nearest in-district high school and the district did not provide transportation or dormitories, the board was required to assign and pay tuition to a school of the parent's choice, which could be in state or out of state.

The "operating a school" deeming language at the end of the statute was important. By treating a district that contracted out as still operating a school, the statute preserved the district's legal existence and its eligibility for various forms of state aid that turned on whether the district was operating. A district that contracted with all of its students out (because it lacked its own high school) was not deemed defunct.

The request mentioned a pending 12-year school referendum. The AG gave no separate interpretation of that measure. Its conclusion addressed Scott District's authority under the quoted statute to assign secondary students based on their distance from the school site and any limits in the Hawarden contract.

Citations and references

Statutes:

• SDC 1960 Supp. 15.3302 (as amended by Chapter 69, Session Laws of 1963) (independent school board assignment of secondary students; ten-mile rule; tuition payment to any public school in state or out of state at parent's request; deeming clause for contracting districts)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1721

Original opinion text

Schools & School Districts. School Districts contracting with other school districts to operate a school.

You have requested an opinion on the following factual situation:

"The Virginia Joint School District #72 has appealed the Lincoln County Board of Education decision to attach them to Hudson Independent District #3 under Section 15.2018 (4). This is a joint district between Union and Lincoln Counties. The members of the district wish to be attached to Scott District #69, Union County, South Dakota, a common school district reorganizing as an independent school district with intentions of sending pupils to 12-year schools operating outside the district.

"At the present time about half the students from District #72 go to Hudson, S. and the other half go to Hawarden, Iowa. Under the planned attachment to School District they would continue at these present schools. The question has been raised, however, if the 12-year school referendum passes this fall, and all schools in South Dakota become 12-year districts could the students wishing to go to Hudson continue to do so under the new law if they belonged to Scott District?

"In other words, could Scott District, which would be contracting to Hawarden, Iowa, also contract to a 12-year district with the State of South Dakota?"

SDC 1960 Supp. 15.3302 as amended by Chapter 69, Session Laws of 1963 reads in part as follows:

"15.3302 Assignment of students: high school privileges. The independent school board shall have authority to assign and distribute the resident students eligible for a secondary education among the high schools in the district. If a student lives more than ten miles from the nearest high school being operated in his own district and bus service or dormitories are not provided said student, the school board shall assign and pay the tuition for the student to any public school or any state institution offering high school subjects in this state or any other state which the student's parent or guardian requests; provided that this provision shall not apply in counties operating a county high school created prior to this act..."

"...School districts entering into contractual agreements herein specified shall be considered as operating a school whether or not the school is located within the boundary of such district, and the district shall be a common or an independent school district depending upon the type of educational program supported as the result of such contract agreement."

It is my opinion that Scott District No. 69 would be subject to the above statutes and secondary students living more than ten miles from the school site could attend a school in another school district and that it would be discretionary with the Scott District No. 69 whether to assign students living within ten miles of the school site to attend a school other than the Hawarden School provided there were no other limitations in the contract with the Hawarden school district.