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 SDC 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 flatly authorizing both arrangements. 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.
That meant Scott District 69 was free to enter contracts with both Hawarden (Iowa) and a 12-year district in South Dakota, assign more-than-ten-mile students per their parent's preference, and assign within-ten-mile students at the board's discretion (subject to the terms of whichever contracts existed). The two contract relationships did not exclude each other.
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. South Dakota's school district consolidation process largely played out in the late 1960s and 1970s, and the inter-district tuition and assignment provisions discussed here have been substantially restructured in modern SDCL Title 13 (Education). Out-of-state tuition contracts are now governed by SDCL chapter 13-28 (open enrollment and tuition agreements) and related provisions. 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 receiving district in this dispute), the opinion meant the district could move ahead with both contract arrangements: Hawarden, Iowa, on the east side, and a yet-to-be-determined 12-year district elsewhere. The board did not have to choose. The statute let the board structure both relationships and assign students to each based on the more-than-ten-mile rule and the board's own preferences.
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 generally in the late 1960s, the opinion supported a contracts-based approach to high school services in small districts that could not (or chose not to) operate their own high school. The legislature had built flexibility into SDC 15.3302 precisely because so many small districts needed it. The 12-year school referendum then pending did not, in the AG's reading, narrow that flexibility.
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 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 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 AG read SDC 15.3302 as continuing to apply regardless of the referendum's outcome. If the referendum passed and all districts became 12-year districts, the statute's contracting authority would still let a district contract with another district (in state or out of state) for high school services. The statute did not turn off based on the universal-12-year status of South Dakota districts.
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. The cross-border arrangements (with Iowa, Minnesota, North Dakota, and Nebraska) 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 pending 12-year school referendum mentioned in the opinion was part of a broader South Dakota consolidation push. The legislature wanted all districts to handle K-12, with smaller districts merging or reorganizing as needed. The referendum did not pass in the form contemplated in 1968, but the consolidation process continued through subsequent legislation over the next decade.
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
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.