When parents who had moved from out of state to Mitchell, South Dakota in fall 1966 had two intellectually disabled children attending out-of-state and later in-state private special-education schools, did the children acquire South Dakota school residence (and thus tuition liability for the Davison County School District) when the family arrived in Mitchell, or only when the Department of Public Instruction tried to assign them to the Hope School in Sioux Falls in 1968?
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: the boys had school residence in Mitchell, and they acquired it at the time the family arrived in Mitchell in fall 1966.
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 I.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 it was Mitchell. The parents had moved to Mitchell in fall 1966 and had remained. The children had been with the parents (the trip to the out-of-state private school did not constitute the children acquiring out-of-state school residence in the school-residence sense). Therefore the boys acquired school residence in Mitchell upon the family's arrival.
The opinion was a prima facie ruling for the parents' position, which made Davison County responsible for the tuition.
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. South Dakota's modern special education statutes are in SDCL Title 13 (chapter 13-37 on exceptional children). Federal special-education law (IDEA, 20 U.S.C. § 1400 et seq.) has substantially preempted state residency disputes about tuition responsibility for children with disabilities. Any current question should be analyzed under IDEA, current SDCL provisions, and federal regulations, not under this 1968 opinion.
What the opinion meant at the time
For the X family, the opinion was a financial victory. Davison County (Mitchell's county) was responsible for the Hope School tuition. The parents did not have to pay out of pocket for placements made by the Department of Public Instruction.
For Davison County, the opinion was an unwelcome bill but a clean legal answer. The county could not avoid responsibility by pointing to the children's out-of-state attendance. Their school residence followed the family's arrival in the county.
For the state Department of Public Instruction and the Division of Pupil Personnel Services, the opinion meant they could assign exceptional children to specialized in-state schools without a county superintendent able to veto the assignment by refusing to certify residence. The school residence followed the family's actual living situation, not a county-issued certificate.
For other South Dakota families with intellectually disabled children, the opinion was an important precedent. Families could move to South Dakota in good faith, send their children to private out-of-state schools temporarily, and still establish South Dakota school residence based on the family's actual living place. The children were not stuck without a home school district while attending an out-of-state program.
For school district administrators, the opinion clarified that the "place where the student actually lives" was the parents' home if the student lived with parents, even if the student was temporarily attending a school elsewhere. The exception in the statute (residence acquired "solely or principally for the purpose of obtaining free schooling") would not apply where the family had moved for other reasons (here, employment in the carpentry trade).
Common questions
Q: Is this opinion still good law?
A: Not directly. The cited statutes have been recodified and significantly revised, and federal IDEA law now governs much of the territory. The general principle, that school residence for a minor follows the parents' actual living place rather than a separate domicile concept, has been carried forward broadly, but specific applications should be checked against current SDCL Title 13 provisions and federal special-education law.
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, which provided an independent confirmation that the boys were considered South Dakota residents at the time of the commitment.
Q: Why did the county superintendent refuse to certify residence?
A: The opinion does not give the superintendent's reasons in detail. Most likely the superintendent was trying to avoid tuition liability for the county. If the boys had attended Hope School without a school-residence certification, the cost could have fallen on someone else (the state, or the parents). The AG's opinion eliminated that maneuvering room.
Q: What was the "Hope School" in Sioux Falls?
A: A South Dakota private school for children with intellectual disabilities. The state used it as a placement option for exceptional children when public schools could not serve them, with tuition paid by the responsible local school district under SDC 1960 Supp. 15.3004 and related provisions.
Q: Did the parents have a duty to keep the boys at home rather than in private schools?
A: No. The opinion does not impose any such duty. Parents could choose to send their children to a private school (in or out of state) and still preserve South Dakota school residence at the parents' home. The school residence question turned on the family's actual living place, not on which schools the children attended.
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 actual-living-place test allowed children with parents to share their parents' residence, which is what the AG applied here.
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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: When the Department of Public Instruction assigned a child to a special-education program in a school district where the child did not already have school residence, the child's school residence stayed at his pre-assignment location. The receiving district was paid by the sending district. This was the mechanism for distributing the cost of state-coordinated special education across 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 I.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's application to the X family followed the framework cleanly: parents moved to Mitchell for employment, not for free schooling; children lived with parents in Mitchell (notwithstanding intermittent private-school placements); therefore boys had Mitchell school residence; therefore Davison County paid the Hope School tuition.
Citations and references
Statutes (as cited in the opinion):
- SDC 1960 Supp. 15.3003, as amended by Ch. 52, Session Laws of 1965 (school residence definition)
- SDC 1960 Supp. 15.3004(1), as amended by Ch. 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 I.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.