When parents moved to Mitchell in fall 1966 while their children attended special-education schools elsewhere, where and when did the children acquire school residence under South Dakota law?
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This page answers the general question as of 1968. Ask about yours and see what current South Dakota law means for your facts, with citations you can check.
Plain-English summary
Mr. and Mrs. X moved from out of state to Mitchell, South Dakota in the fall of 1966. Mr. X took up the carpentry trade in Mitchell, and the family continued to reside there. Before the move, their two intellectually disabled sons, A and B, had attended the New Hope Village Private School for Mentally Retarded Children in Southerland, Nebraska. The boys continued attending that out-of-state private school into 1967.
The Mitchell Public School refused to enroll the boys in its special-education classes. Testing showed the boys had estimated mental ages of two years one month and two years three months; the Mitchell classes did not accept children under a mental age of three years.
The boys moved to the Hope School in Sioux Falls in November 1967. The state Division of Pupil Personnel Services assigned them to the Hope School in March 1968, but only on condition that the Davison County Superintendent of Schools (the county containing Mitchell) certify the boys' school residence in Davison County. The superintendent refused to certify.
In July 1967 the boys had been committed to the Redfield State Hospital by the Davison County Court (Mitchell's county court). They were still attending Hope School in Sioux Falls. Tuition had not been paid. Davison County had been billed and had refused payment on the ground that the boys did not have school residence in Mitchell.
The two questions to the AG:
- Where do the boys currently have school residence?
- When did they legally acquire that school residence?
The AG answered that the parents had a prima facie case that they and the boys had school residence in Mitchell. It said the residence was acquired when they arrived there.
The reasoning relied on the distinction the case law draws between "school residence" and the narrower legal concept of "domicile":
"Residence entitling an infant to school privileges is distinguished from domicile, or the technical and narrow use of the term 'residence,' for the purpose of suffrage or other like purposes, and is construed in a liberal sense as meaning to live in or be an inhabitant of a school district..."
The AG cited 47 Am. Jur. 152, Grand Lodge 1. O. O. F. v. Board of Education, 90 W. Va. 8, Newman v. Graham, 82 Idaho 90, and the Restatement of Conflict of Laws § 22 for the proposition that school residence requires only actual living in the district, not a domiciliary intent.
SDC 1960 Supp. 15.3003 (as amended by Chapter 52 of the 1965 Session Laws) confirmed this approach for South Dakota:
"School residence for the purpose of claiming free school privileges shall mean actual residence or the place where the student actually lives; however, the student, his parents, or legal guardian shall not establish school residence and be exempt from the payment of tuition where the residence was acquired solely or principally for the purpose of obtaining free schooling..."
The statute also had a specific provision for special education assignments:
"When a child has been assigned to attend a special education class in a specified school district, where such child does not have school residence by the State Department of Public instruction, the school residence of such child remains within the school district wherein such child had school residence at the time if such assignment."
So when the Department of Public Instruction assigned the boys to the Hope School in Sioux Falls, their school residence stayed wherever it had been at the time of the assignment, not Sioux Falls. The question was where that pre-assignment school residence had been.
The AG concluded that the parents had a prima facie case for Mitchell school residence for themselves and the boys. It identified the family's arrival in Mitchell as the time that residence was acquired. It did not make a final tuition determination.
The opinion did not decide Davison County's liability for the Hope School bill.
Currency note
This opinion was issued in 1968 (approximate, based on the March 1968 Department of Public Instruction action). 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. Any current school-residence or tuition question should be analyzed under current federal and state law.
What the opinion meant at the time
For the X family, the opinion supported a prima facie claim of Mitchell school residence. It did not decide whether Davison County or the parents had to pay the Hope School tuition.
For Davison County, the opinion addressed the county's stated objection to the tuition bill, which was that the boys lacked Mitchell school residence. The AG gave a prima facie residence answer without ordering the county to pay the bill.
For the state Department of Public Instruction, the opinion addressed school residence after the county superintendent had refused to certify it. It did not decide the superintendent's certification authority or the validity of an assignment without certification.
For other families, the opinion illustrates the fact-specific residence inquiry under the statute. The AG gave a prima facie conclusion for this family; it did not announce a general rule that private school attendance never affects school residence.
For school district administrators, the AG concluded that the parents and their boys had a prima facie case for school residence in Mitchell, acquired when the family arrived there. The boys had attended schools in Nebraska and Sioux Falls. Although the opinion quoted the statute's exception for residence acquired "solely or principally for the purpose of obtaining free schooling," it did not analyze the family's motive for moving. The facts say Mr. X worked as a carpenter in Mitchell.
Common questions
Q: Is this opinion still good law?
A: Not directly. The cited statutes have since been recodified and significantly revised, and federal special-education law now governs much of this territory. Check current South Dakota and federal law before relying on its residence conclusion for a present-day placement or tuition question.
Q: What was the Redfield State Hospital and School commitment in the facts?
A: The Redfield State Hospital and School was a South Dakota institution for persons with intellectual disabilities. The Davison County Court committed the boys to Redfield in July 1967, but the boys continued attending Hope School in Sioux Falls. SDC 1960 Supp. 30.0605-1 required residency in South Dakota for admission to Redfield, The opinion does not say whether the boys were admitted.
Q: Why did the county superintendent refuse to certify residence?
A: The opinion does not give the superintendent's reasons. It says Davison County had refused to pay a tuition bill on the ground that the boys lacked Mitchell school residence. The AG gave a prima facie answer on residence, without deciding payment liability.
Q: What was the "Hope School" in Sioux Falls?
A: The boys entered the Hope School in Sioux Falls in November 1967. The opinion says the state Division of Pupil Personnel Services assigned them there in March 1968, subject to residence certification. It does not determine who owed the school's tuition.
Q: Did the parents have a duty to keep the boys at home rather than in private schools?
A: The opinion did not address a general parental duty or right to choose private schools. It gave a prima facie residence conclusion on this family's facts.
Background and statutory framework
The opinion sits at the intersection of three statutory frameworks:
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School residence: SDC 1960 Supp. 15.3003, as amended by Chapter 52 of the 1965 Session Laws, defined school residence functionally: the place where the student actually lives, except where the residence was acquired solely or principally to obtain free schooling. The AG concluded that the parents and boys had a prima facie case for Mitchell school residence without separately analyzing that exception.
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Exceptional children: SDC 1960 Supp. 15.3004(1), as amended by Chapter 77 of the 1961 Session Laws, defined exceptional children as all children under 21 who were South Dakota residents and who, because of their physical or mental condition, were not adequately provided for through the usual facilities of the public schools. The boys A and B qualified.
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Special education assignment by DPI: The quoted statute said that assignment to a special-education class in another district did not change a child's existing school residence. The opinion did not decide tuition payment between districts or counties.
The case law on school residence had long treated residence in this context more liberally than residence for suffrage, taxation, or estate purposes. Grand Lodge 1. O. O. F. v. Board of Education held that even a temporary residence not solely to enjoy free schools sufficed. The Restatement of Conflict of Laws § 22 made the same point. Newman v. Graham distinguished domicile (intent to remain) from mere residence (intent to leave when the purpose is accomplished), and the school context used the more liberal residence concept.
The AG applied the statutory residence framework to the family's move to Mitchell and concluded that the parents had a prima facie case that they and the boys had school residence there. It identified their arrival as the time of acquisition and gave no tuition ruling.
Citations and references
Statutes (as cited in the opinion):
- SDC 1960 Supp. 15.3003, as amended by Chapter 52, Session Laws of 1965 (school residence definition)
- SDC 1960 Supp. 15.3004(1), as amended by Chapter 77, Session Laws of 1961 (exceptional children definition)
- SDC 1960 Supp. 30.0605-1 (Redfield admission residency requirement)
Cases and treatises (as cited in the opinion):
- 47 Am. Jur. 152 (school residence distinguished from domicile)
- Grand Lodge 1. O. O. F. v. Board of Education, 90 W. Va. 8, 110 S. E. 440, 48 ALR 1092
- Newman v. Graham, 82 Idaho 90, 349 P2d 716, 83 ALR 2d 492
- Restatement of Conflict of Laws § 22
- 25 Am. Jur. 2d § 23 (length of residence; act and intent concurrent)
Prior AG opinions:
- 1953-54 AGR 228 (school residence generally)
- 1959-60 AGR (school residence generally)
Source
Original opinion text
Schools & School Districts. School Residency.
You have requested an opinion based upon the following factual situation:
"Mr. and Mrs. "X" who reside at Mitchell, South Dakota moved from out of state to Mitchell, South Dakota in the fall of 1966 and have continued to reside in Mitchell since such time where he has been engaged in the carpentry trade. Prior to such time their children "A" and "B" had attended the New Hope Village Private School for Mentally Retarded Children at Southerland, Nebraska. The boys continued to stay in such private school until 1967.
"The Mitchell Public School refused to enroll such boys in their special education classes because tests showed them to have an estimated mental age of two years and one month and two years and three months and the Mitchell classes do not accept children until they have a mental age of three years.
"The boys entered the Hope School in Sioux Falls in November, 1967. They were assigned to the Hope School for Retarded Children in Sioux Falls by the Division of Pupil Personnel Services on March 1, 1968, provided the Davison County Superintendent of Schools would certify that they had school residence in Davison County. The County Superintendent refused to certify that they had school residence in such county.
"The children are still in the Hope School in Sioux Falls and to date no tuition has been paid for them. Davison county has been presented a bill for the tuition and has refused payment on the grounds that the boys do not have school residence in Mitchell.
"The boys were committed to the Redfield State Hospital by the Davison County Court in July 1967."
You have asked the following specific questions:
"1. Where do the boys in question currently have school residence?
"2. When did they legally acquire school residence?"
47 Am. Jur 152 reads in part as follows:
"Although there is some conflict in the decisions as to what constitutes a residence entitling a child to school privileges, statutes providing for a free public school system are usually construed as evidencing an intention on the part of the state that all children within its borders shall enjoy the opportunity of a free education. In line with this construction of the statutes, residence entitling an infant to school privileges is distinguished from domicile, or the technical and narrow use of the term 'residence,' for the purpose of suffrage or other like purposes. and is construed in a liberal sense as meaning to live in or be an inhabitant of a school district It is not indispensable that school children should have a legal domicile in the district in which they claim school privileges if they actually reside in such district with no present purpose of removal and are under the control of one who fulfills the minimum requirements of being in loco parentis."
In Grand Lodge 1. O. O. F. v. Board of Education, 90 W. Va. 8, 110 S. E. 440, 48 ALR 1092, the Court said:
"The residence necessary to entitle a child to attend public schools without payment of tuition is not such as would be required to establish a right to vote, or which would fix the liability for the support of a pauper, or for the purpose of determining the right of administration of his estate, but a residence even for a temporary purpose, not solely to enjoy the benefits of the free schools, and with the intention of removal as soon as that purpose is accomplished or is sufficient."
25 Am. Jur. 2d S 23 reads in part as follows:
"Length of residence is not a factor where the act and the intention to acquire a domicile concur. No definite period of time is necessary to create a domicile, unless the law so provides. Any period of residence, however short, will suffice when coupled with Intent, whether it is for one day, for an hour, or only for a moment. Long-continued habitation, however, may be an important circumstance in determining the question of domicile, in the absence of other evidence showing the avowed intention. ..."
A restatement of Conflict of Laws 22 provides "although there may be a special, even an unworthy, motive in making the change, if the new dwelling place is acquired with the necessary intention of making it a home, it becomes a domicile of choice."
In Newman v. Graham, 82 Idaho 90, 349 P2d 716, 83 ALR 2d 492 the Court said:
"It has been held that one acquires a domicile within the state if it is his intention to remain; one acquires a mere residence within the state if it is his intent to leave as soon as his purpose of entry is accomplished."
SDC 1960 Supp. 15.3003, as amended by Chapter 52, Session Laws of 1965, reads in part as follows:
"School residence for the purpose of claiming free school privileges shall mean actual residence or the place where the student actually lives; however, the student, his parents, or legal guardian shall not establish school residence and be-exempt' from the payment of tuition where the residence was acquired solely or principally for the purpose of Obtaining free schooling… When a child has been assigned to attend a special education class in a specified school district, where such child does not have school residence by the State Department of Public instruction, the school residence of such child remains within the school district wherein Such child had school residence at the time if such assignment."
Subsection (1) of SDC 1960 Supp. 15.3004, as amended' by Chapter 77, Session Laws of 1961 reads as follows:
"1. For the purpose of this Act, exceptional children shall mean all children under the age of twenty-one years who are residents of the State of South Dakota and who because of their physical or mental condition are not adequately provided for through the usual facilities of the public schools."
SDC 1960 Supp. 30.0605-1 provides that a person must be a resident of the State of South Dakota to qualify for admission to the Redfield State Hospital and School. See 1953-54 AGR 228 and 1959-60 AGR for a general coverage on school residence.
It is my opinion that Mr. and Mrs. "X" have a prima facie case that they have school residence in Mitchell, South Dakota and that their children A and B also have school residence in Mitchell.
It is my opinion that their school residence was acquired in Mitchell at the time they arrived in Mitchell.
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