When a common school district was carved up and merged into two different independent districts in 1969, who got to decide whether the elementary school in one of the new pieces stayed open or closed: the people in the closing-vote area only, the people in the original common district, or the school board?

Plain-English summary

Chapter 38 of the 1967 Session Laws made school district reorganization mandatory and required an independent district to continue operating an elementary school that was in operation on December 5, 1968, subject to the conditions quoted in the opinion.

In this hypothetical (which Dr. Diedtrich, the State Superintendent, drew from a real-world situation he was advising on), common school district "A" was split into two pieces: "A-1" went to independent district "B," and "A-2" went to independent district "C." The split was authorized by the county board of education on January 8, 1969, and the order took effect July 1, 1969. There was an elementary school operating in the "A-1" portion as of the December 5, 1968 effective date of the reorganization statute.

The State Superintendent asked seven questions about how Chapter 38's "continue to operate" clause and the related student-assignment rules worked in practice. The AG's answers:

Q1. Must district B continue operating the A-1 elementary school for the children in A-1 who wanted to attend? Yes. Section 15.2005(2) (amended by 1967 Chapter 38) required the independent district to continue operating any elementary school in operation as of December 5, 1968, until the resident voters of the area that had operated the school voted to close it.

Q2. Could district B reassign individual A-1 children to other schools in district B upon parent request? Yes, under SDCL 13-28-15 (the school board's general elementary-student-assignment authority). The board could not initiate a transfer, but could grant one if parents requested.

Q3. Must district C send all the A-2 children back to the A-1 elementary school in district B? No. The AG said district C could assign them to schools within or outside its district under SDCL 13-28-15 and pay tuition.

Q4. Could the electors in the whole original "A" common district hold a closure vote before July 1, 1969? Effectively no for the post-July 1 school term. Once the A-1 and A-2 areas were severed into different new districts, only the A-1 electors had standing to close the A-1 school for the next school year.

Q5. Must a closure election before July 1, 1969 be called by district B and based on the A area or the A-1 area? A-1 only. Once the reorganization order had been issued (January 10, 1969), the A-2 voters had separated themselves from the A-1 school's electorate.

Q6. A closure election after July 1, 1969 had to be voted by which electors, A or A-1? A-1 only.

Q7. Could the B school board ignore the closure vote and keep the A-1 school running? No. Under Section 3, Ch. 45, Laws of 1968, the closure vote was binding on the B school board for the next fiscal year.

When discussing whether requested student transfers could make a school ineligible for state aid, the AG also noted that SDCL 13-13-15 might still require operation of a qualifying one-teacher rural school. He did not apply that provision to a school closed by elector vote.

Currency note

This opinion applied South Dakota's school statutes in 1969 to a reorganization effective July 1 that year. Check current law before using its voting, assignment, or school-operation rules today.

What the opinion meant at the time

For state education officials handling the described reorganization, the opinion placed the closing vote with A-1 electors, not with all residents of the former common district A.

For district B's board, the opinion required continued operation of the A-1 school while eligible under the quoted statute. It could consider a parent's request to assign a child elsewhere; if enough such transfers made continued operation disqualify the district from state aid, the AG said the board could close the school, subject to the possible operation requirement in SDCL 13-13-15.

For A-1 parents, the AG said district B had to assign children who wished to attend the school there while it operated. Parents could also apply for assignment to another school in district B.

For A-2 residents, the AG said they lost the right to vote on closing the A-1 school after choosing to join district C. District C could assign A-2 children to schools within or outside C and pay tuition.

For state-aid decisions, the AG said the board could close the school if parent-requested transfers made its continued operation render the district ineligible for state aid. He then noted a possible duty under SDCL 13-13-15 to continue a qualifying one-teacher rural school.

Common questions

Q: What if the A-1 area had no elementary school of its own?
A: The "continue to operate" rule applied only to elementary schools "in operation as of the effective date of this Act" (December 5, 1968). If the A-1 area had no school, there was nothing for the rule to preserve. A-1 students would be assigned to schools in district B under SDCL 13-28-15.

Q: Could the A-1 voters force the B school board to keep the school open even if it lost most of its students?
A: The AG said district B could close it if parent-requested assignments elsewhere made continued operation render the district ineligible for state aid. He added that SDCL 13-13-15 might still require operation of a qualifying one-teacher rural school in that situation.

Q: What if A-1 voters wanted to close the school and B board members wanted to keep it open?
A: The A-1 voters' decision controlled for the next fiscal year. The AG said their vote to close the school would bind the district B board for that period; he did not address reopening later.

Q: Could residents of district C enroll their A-2 children in the A-1 school?
A: The AG said district C could assign A-2 children to schools within or outside district C under SDCL 13-28-15 and pay tuition. He did not decide an individual request for placement at the A-1 school.

Q: What if 20% of A-1 electors petitioned for a closure election, but the B school board ignored the petition?
A: The statute required the board to call the election upon a 20% petition of the resident electors of the area. The opinion did not address what remedy electors would have if the board refused to call the election.

Q: Did the December 6, 1968 AG opinion to Tripp County mentioned in the text address a different question?
A: That opinion (issued just before Chapter 38 took effect) addressed the school board's general authority to assign elementary students to other schools within or without the district. The 1969 opinion cites it for the proposition that the school board retained discretionary assignment authority under SDCL 13-28-15 even after the Chapter 38 amendment took effect. The other 1965-66 AGR cites (p. 201, 279, 289) addressed similar pre-reorganization-era assignment questions.

Q: What if the school had been operating before December 5, 1968 but closed for non-Chapter-38 reasons in early 1969?
A: The AG applied the statute to a school operating on December 5, 1968. The opinion did not decide whether a separate closure before July 1 for another reason would change the result.

Background and statutory framework

The request assumed common school district A was divided between independent districts B and C. A-1, containing an elementary school, joined B; A-2 joined C.

The county board authorized the reorganization order on January 8, 1969. The county superintendent issued it on January 10, with a July 1 effective date.

Chapter 38 amended Section 15.2005(2) to require the independent district to continue operating an elementary school in operation on the act's effective date until resident voters of the area that operated it voted to close it. A board resolution or a petition by 20% of those electors could call the election. The quoted provision included an exception where continued operation would make the district ineligible for state aid.

The AG cited Section 3, Ch. 45, Laws of 1968 for his conclusion that an A-1 vote to close would bind district B for the next fiscal year.

The general student-assignment statute SDCL 13-28-15 gave boards discretion to assign individual elementary students within the district, considering equal educational facilities, patron wishes, and student interests.

The quoted closure-vote provision did not apply where continued operation of the school would make the district ineligible for state aid under SDC 1960 Supp. 15.2246.

In discussing closure after parent-requested transfers, the AG noted that SDCL 13-13-15 might still require the board to operate a one-teacher rural school with average daily membership of five or less and no other elementary school within five miles by publicly traveled road.

This 1969 opinion mapped those provisions onto the post-reorganization world, where district boundaries had moved but elementary school operations had to follow specific rules.

Citations and references

South Dakota statutes:

• SDC 1960 Supp. 15.2005(2) (continue-to-operate requirement, as amended by 1967 Chapter 38)
• SDCL 13-28-15 (assignment of elementary students within district)
• SDCL 13-13-15 (one-teacher rural school floor)
• SDC 1960 Supp. 15.2246 (state-aid eligibility)
• SDC 1960 Supp. 15.3015 (procedure for closure election)
• 1967 Session Laws, Chapter 38 (reorganization mandate; continue-to-operate amendment)
• Section 3, Ch. 45, Laws of 1968 (binding effect of closure vote on board)

Other AG opinions:

• December 6, 1968 opinion to John J. Simpson, State's Attorney, Tripp County, Winner, South Dakota (board's assignment authority under SDCL 13-28-15)
• 1965-66 AGR p. 201, 279, 289 (related school-assignment opinions)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1655
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2069-51.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

OFFICIAL OPINION NO. 69-51

Schools and School Districts; Reorganization, continuation of school in operation, assignment of students, closing elementary school, and rights of residents of former common school district who are now residents of a different independent district which has no jurisdiction over such elementary school.

STATE OF SOUTH DAKOTA
OFFICE OF THE ATTORNEY GENERAL
June 13, 1969

Dr. Gordon A. Diedtrich, State Superintendent
Department of Public Instruction
Pierre, South Dakota 57501

Dear Dr. Diedtrich:

The situation presented is as follows:

"Assumed situation-Common school district 'A' was reorganized and became a part of independent school districts 'B' and 'C.' The 'A-1' portion of common school district 'A' became a part of independent school district 'B,' and the 'A-2' portion of common school district 'A' became a part of independent school district 'C.' The county board of education authorized the county superintendent of schools to issue the order establishing such reorganization on January 8, 1969, making the effective date of such reorganization July 1, 1969, and the county superintendent of schools issued such order on January 10, 1969."

ILLUSTRATION

B independent sch. district
A-1 *
A …a common school district
A-2
C independent sch. district

(*…indicates an elementary school which was in operation on December 5, 1968)

SPECIFIC QUESTIONS-The questions asked will be answered in the order as given.

"1. Must the school board of the 'B' independent school district assign all of the elementary children who reside in the 'A-1' area to attend the '*' elementary school who wish to attend such school district as long as it is operated?"

The answer to this question is YES. Section 15.2005(2), as amended by Chapter 38 of the Session Laws of 1967 (effective December 5, 1968) provides as follows:

"The school board of an independent school district shall continue to operate any elementary school in operation as of the effective date of this Act, until such time as only the resident voters of the area which operated said elementary school shall vote to cease operating said school or schools . . . (emphasis added). Such election shall be called by the school board of the independent school district by resolution or upon a petition by 20% of the electors residing in such area and shall be conducted in accordance with the laws governing elections in independent school districts, provided, however, that the provisions of this subsection shall not apply to any elementary school which by its continued operation would make the district ineligible for state aid under the provisions of SDC 1960 Supp. 15.2246 as amended."

The wishes of the patrons of the school must be respected by the school board under the enactment as quoted in full above. This section is mandatory and in our opinion expresses the clear intention of the Legislature to assure the patrons and the resident electors that the reorganization made mandatory by Chapter 38 of the Session Laws of 1967 did not intend to close any elementary schools, the operation of which was otherwise necessary and so desired by the resident voters of the area which operated said elementary school.

"2. If a child who resides within the 'A-1' area wishes to be assigned to a school operated within the 'B' independent school district which is located outside of the 'A-1' area of such 'B' school district, may the school board of the 'B' school district make such assignment?"

The answer to this question is YES. SDCL 13-28-15 provides as follows:

"Assignment of elementary students within district-Factors considered.-Every school board shall have the power and duty to make assignment and distribution of all elementary students with school residence within the district. The board shall take into consideration in assigning and distributing students its duty to provide equal educational facilities, the wishes of the patrons, and the best interests of the students in the district."

It is our opinion that it was not the intention of the Legislature by that portion of Chapter 38 of Session Laws of 1967 as quoted at length above, to repeal SDCL 13-28-15, or to take any rights away from the board with respect to the assignment to other schools.

The board cannot, on its own initiative and volition, assign such students, but upon application of the parents of the child consideration of such reassignment can be given by the board and the board has authority to make such assignment if the same is deemed advisable.

This immediately gives rise to another question, that is-suppose sufficient parents request the board to assign their children to other schools so that the continued operation of the school would make the district ineligible for state aid under the provisions of SDC 1960 Supp. 15.2246, as amended. In that case the board would be authorized to close the school. In making this statement we are not unmindful of the provisions of SDCL 13-13-15 wherein it is possible that a one teacher rural school with an average daily membership of five or less pupils, not within five miles by publicly traveled road, of any other elementary school in operation during the previous school fiscal year would still be required to be operated by the board.

For other Attorney General opinions covering the question of the authority of a school board to assign students to other schools within or without the district, see the opinion of December 6, 1968 to Mr. John J. Simpson, State's Attorney, Tripp County, Winner, South Dakota, and Attorney General's opinion in 1965-66 AGR, p. 201, 279 and 289.

"3. Must the school board of the 'C' independent school district assign all children who reside within the 'A-2' area of such 'C' independent school district to attend the elementary school located within the 'A-1' area of the 'B' independent school district, or does such school board have the privilege of assigning them to a public school located within or outside of the 'C' independent school district?"

In our opinion, the school board of the "C" independent school district may assign the children who reside within the "A-2" area of such "C" independent school district to such school or schools as they desire within the provisions of SDCL Section 13-28-15, and pay tuition. Therefore, the answer to the first part of this question is NO, and the answer to the latter part of your question is YES.

"4. Can the electors who reside in the 'A' area legally hold an election to close the '*' school prior to July 1, 1969, and conduct such election under the provisions of SDC 1960 Supp. 15.3015 subsequent to January 10, 1969, and prior to July 1, 1969, and would a majority vote in favor of closing the school under such circumstances remove the school board of the 'B' independent school district from its obligation to operate such school subsequent to July 1, 1969?"

In our opinion, when the electors in 'A-2' voted to become a part of 'C' independent school district, they lost their rights with respect to the school located in the "A-1" district. The electors in "A-1" may vote to close such school. This answer applies only to the school term subsequent to the one ending June 30, 1969 and after the effective date of the reorganization.

"5. Must an election to close the '*' school subsequent to January 10, 1969, and prior to July 1, 1969, '. . . be called by the school board of the independent school district 'B' by resolution or upon a petition by 20% of the electors residing in . . .' area 'A' or area 'A-1'?"

In our opinion, the electors residing in "A-1" are the only electors that now have the right to close the school effective as of July 1, 1969. This is by a petition of 20% of the electors residing in area "A-1" and an election to close such school must be called by the school board of the independent school district wherein the school located is attached.

"6. Must an election to close the '*' school subsequent to July 1, 1969, be voted upon only by the electors who reside in the area 'A-1' or must it be voted upon by the electors who reside in the area 'A'?"

It must be voted upon by the electors who reside in area "A-1" only. (See No. 5 above.)

"7. Does a vote by the electors qualified to vote to close the '*' school require the school to be closed against the wishes of the 'B' independent school district board or can such board legally continue to operate such school until such board considers it advisable to close such school?"

In our opinion, a vote by the electors in "A-1" to close the "*" school would be binding upon the "B" independent school district for the period of the next fiscal year. (See Section 3, Ch. 45, Laws of 1968.)

Respectfully submitted,

Gordon Mydland
Attorney General