Our common school district contracts with a neighboring district to bus our high school students there. But some students decided to attend a different high school instead, and never used our contracted bus. Now their parents want us to pay three years of mileage to the other school. Do we have to pay?
Plain-English summary
A small common school district (Common School District X) had contracted with a neighboring independent school district (Independent School District Y) to bus its high school students from District X to District Y. District X paid the cost. The arrangement gave every high school student in District X access to a district-furnished ride to Y.
Some District X students went elsewhere. They attended high school in a third district (District Z) instead of riding the bus to Y. District X had never authorized any transportation reimbursement or board-and-room allowance for students attending Z; the only authorized transportation was the Y bus.
After three years of this, the parents of the District Z students presented claims to District X's board asking for back mileage covering the round-trip mileage their children had been driving to Z each school day. The amount was substantial after three years.
The AG ruled the claims invalid on two independent statutory grounds.
First, SDC 1960 Supp. 15.3309 entitled to transportation or board-and-room allowance only "the following types of students who do not have access to bus service furnished by the school." The District Z students had access to bus service furnished by District X (the bus to Y). They simply chose not to use it. The statute did not require districts to subsidize that choice.
The AG cited his own earlier opinion at 1963-64 AGR 229, which had drawn this exact distinction: if a common school district contracted with an independent district to provide bus service for all eligible residents, then those residents were not eligible for any other transportation payment, as long as the bus stop was near their home. The carve-out went the other way: if the contract did not cover all eligible residents, or if the bus did not pick up near a particular student's home, that student could still claim mileage.
Second, SDC 15.3309(2) required board authorization before secondary transportation payments could be made. The District X board had never authorized mileage to the District Z students, so under a strict reading of the statute, the claims could not be paid even if the access-to-bus question had come out the other way.
The AG used the answer to question 1 to dispose of question 2 (whether providing bus service to Y had any bearing on the legality of paying mileage to Z students). The answer was that District X had to be consistent: it could either furnish bus service to all secondary students, or pay transportation allowances to all secondary students, but it did not have to do both, and once it had chosen to furnish bus service, students who skipped the bus could not also claim allowances on top.
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 transportation statutes have been recodified into modern SDCL chapter 13-29 (Transportation) and the open-enrollment statutes in SDCL chapter 13-28. Modern policy on inter-district enrollment, transportation reimbursement, and parental choice has evolved significantly. Districts handling current transportation reimbursement claims should consult current SDCL provisions and Department of Education guidance.
What the opinion meant at the time
For common school district boards (especially small rural districts with limited budgets), the opinion gave them a clean basis to deny mileage claims from families who had chosen a different high school than the one the district was paying to bus students to. The board's contract with the receiving district was their compliance with the transportation duty. Students who walked away from that compliance walked away from the reimbursement.
For parents who had been driving their children to a different high school, the opinion confirmed they would not get reimbursed retroactively. If they wanted reimbursement going forward, they needed to convince the district board to authorize mileage for the Z-school route, which the board had no statutory obligation to do as long as the Y-school bus was available.
For school boards generally, the opinion supported a "furnished service OR allowance, not both" reading of SDC 15.3309. The board could choose how to discharge its transportation duty for secondary students; once it chose furnished bus service, it had discharged its duty for all students with bus access, and the board did not have to layer allowance payments on top.
For Department of Public Instruction officials reviewing district transportation budgets, the opinion provided a workable rule: a district with a comprehensive bus contract was not on the hook for additional transportation costs to families who chose to attend a different school. That preserved district budget predictability and discouraged opportunistic claims.
Common questions
Q: What if the bus contract only covered some students, not all of them?
A: The AG's reading of the 1963-64 AGR 229 opinion was that the contract had to cover "all eligible residents in the common school district" (or all designated residents, if the contract specified by name). If the contract was narrower, then residents not covered by it would still have claims under SDC 15.3309 because they did not have access to bus service furnished by the district.
Q: What if the bus stop was not close to a student's home?
A: The 1963-64 opinion specifically required the bus stop to be "near the resident's home." A bus that picked up only at one central spot in a large rural district would not have given access to students living far from that spot. Those students could have claimed mileage even if the contract covered them on paper.
Q: Could the district have authorized mileage to the District Z students if it wanted to?
A: SDC 15.3309(2) made authorization discretionary with the board for secondary students. So yes, the board could have authorized mileage to the District Z students, but it had not, and the statute did not compel it to do so going forward.
Q: Did the same analysis apply to elementary students?
A: The opinion noted that the district was responsible for furnishing transportation for all elementary students. The discretionary "transportation or board and room allowance" framework applied specifically to secondary students. Elementary transportation followed a different (mandatory) framework.
Q: What about students who lived more than ten miles from the nearest high school?
A: That ten-mile rule (from SDC 15.3302, addressed in opinion id=1721 in this same era) applied to independent school district assignment, not directly to common school district transportation. The interaction between the two statutes was complex, but the basic principle in 1729 was that available furnished service was a complete answer to mileage claims.
Q: Could the parents have sued instead of presenting claims to the board?
A: They could have pursued the claims in court if denied by the board, but the statutory text and the prior AG opinion gave the board a strong defense. A court would likely have followed the AG's reading of SDC 15.3309.
Background and statutory framework
South Dakota's school transportation law in the 1960s recognized two paths for districts to discharge their duty to get students to school: (1) furnish bus service, or (2) pay an allowance (mileage, or board-and-room for distant students). SDC 1960 Supp. 15.3309 codified this two-path framework, with the eligibility for the allowance turning on whether the student had access to furnished bus service.
Common school districts (the smaller, often single-school districts in rural areas) frequently did not operate their own high schools. They contracted with neighboring independent school districts to take their high school students. The contract typically covered tuition and transportation, with the small district paying for both out of its budget.
The 1963-64 AGR 229 opinion cited by the AG had already addressed the exact scenario raised here, drawing the line at "access" to furnished service. The 1968 opinion was a confirmation of that line in the face of an aggressive three-year back-mileage claim.
The authorization requirement in SDC 15.3309(2) was a separate guardrail. Even where a district decided to pay mileage, the payment had to be on the basis of a board-authorized transportation arrangement, not a unilateral parental choice. That kept the district's budget under board control.
Citations and references
Statutes:
- SDC 1960 Supp. 15.3309 (transportation or board-and-room allowance for students without access to furnished bus service)
- SDC 1960 Supp. 15.3309(2) (board authorization required for secondary student transportation payments)
Prior AG opinions:
- 1963-64 AGR 229 (residents with contract-furnished bus service are not eligible for other transportation payments)
Source
Original opinion text
Schools & School Districts. Claims for mileage against a common school district.
We are in receipt of your request for an official opinion. In summary, you have presented the following fact situation:
"Common School District X made and entered into a contract with Independent School District Y for the purpose of having high school students transported by bus from District X to District Y with the cost of transporting being paid by District
Some of the students from District X did not attend District Y but attended District Z. These students now ask District X to pay them mileage for the past three years. At no time did District X authorize any transportation or board and room allowance to those students attending District Z. You ask two questions:
"(1) Is the Board of Education of School District X obligated to pay the claims for mileage presented to said Board by the parents of the students of District X who attended high school in District Z?
"(2) Assuming that the answer to Question 1 is no does the fact that the Board of Education of District X provided bus transportation for high school students from its district to District Y have any bearing on the situation?"
With regard to your first question, it is my opinion that District X is not liable for the claims made against it. There are two reasons for this opinion:
First, SDC 1960 Supp. 15.3309 states, "The following types of students who do not have access to bus service furnished by the school shall be entitled to transportation or board and room allowance..." (Emphasis supplied). From the fact situation it appears that the students going to District Z did have access to bus service furnished by the school district and did not take advantage of it. Consequently, these students do not fall within the meaning of SDC 1960 Supp. 15.3309 because they do have access to a furnished bus service. This view is supported by my opinion of 1963-64 AGR 229. It was therein stated that, it is also my opinion that if the common school district entered into a contract with the independent school district and that said contract provided that bus service was to be furnished for all eligible residents in the common school district, or if the contract provided for the furnishing of bus service to designated residents of the common school district, then said residents would not be eligible for any other transportation payment, provided the designated bus stop was near the resident's home." In other words, the students going to District Z are not entitled to mileage if they had access to furnished transportation going to District Y.
However, if the contract between District X and District Y did not contemplate bus service for all eligible residents, the above opinion is also authority for allowing claims against the District for transportation to those residents not near a bus stop or not having access to any furnished transportation.
Secondly, SDC 15.3309 (2) further states secondary students are entitled to transportation, provided such transportation is authorized by his school district board." According to the fact situation, mileage for transportation to students attending District Z was not authorized by the District X and a strict interpretation of the above statute would invalidate their claims for past mileage.
The answer to question one also answers your second question. X District is responsible for furnishing transportation for all elementary students and has the option to furnish transportation or board and room allowance for secondary students. If said option is exercised by the School District Board to pay transportation or board and room allowance for secondary students, then such payments should be made available to all secondary students of the District either by the furnishing of bus service or payments for transportation or board and room allowances. If bus service is furnished all students, the District does not have to pay mileage or room and board allowance to those not taking advantage of such bus service. SDC 1960 Supp. 15.3309.