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

The 1967 South Dakota Legislature passed Chapter 38, which forced reorganization of common school districts into independent school districts on a deadline. Most of the dissolving common districts were too small to stand alone as independents, so they were typically carved up and attached to two or more neighboring independent districts.

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. SDC 15.2005(2) (amended by 1967 Ch. 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. District C could assign A-2 children to schools within C or pay tuition to other districts; A-2 children were no longer A-1 residents and had no vested right to the A-1 school.

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 of Chapter 45 of the 1968 Session Laws, the closure vote was binding on the B school board for the next fiscal year.

The opinion also noted SDCL 13-13-15, which required a school board to continue operating a one-teacher rural school with an average daily membership of five or less if there was no other elementary school within five miles. That requirement could still trump the closure vote in narrow circumstances.

Currency note

This opinion was issued in 1969. 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 code has been thoroughly recodified since 1969. The provisions analyzed here from SDC ch. 15 became SDCL Title 13 (Education), with substantial restructuring of the school-district reorganization provisions, the state-aid formula, and the assignment-of-students rules. The "continue to operate" requirement for elementary schools tied to a 1968 baseline is no longer a current operative rule. Modern school-district consolidation and school-closing questions are governed by current SDCL Title 13 chapters and Department of Education policy.

What the opinion meant at the time

For state education officials handling the 1968-69 reorganization, the opinion provided a clear allocation of decision-making authority. Where a common school district had been split between two independent districts, the closing-vote authority for an elementary school stayed with the area that had operated the school, not the whole former common district. This prevented A-2 residents (who had no remaining connection to the A-1 school) from voting on whether A-1 kept its school.

For new independent school district boards inheriting elementary schools from reorganized common districts, the message was that they could not unilaterally close those elementary schools. The 1967 Ch. 38 amendment had locked in the school's continued operation until the local voters who built and supported it voted to close it. The board's discretion ran to other matters (assignment of individual transfer-requesting children, contracting for tuition, etc.) but not to the decision to close.

For parents and patrons of small rural elementary schools, the opinion was a layer of statutory protection. The Legislature, when it forced reorganization, had explicitly preserved the local elementary school's existence in the hands of the local voters. The reorganization could shift district boundaries and administrative authority, but it could not close the small rural school over the wishes of the patrons who used it.

For residents of areas like "A-2" who had once been part of the same common district as the A-1 school, the opinion told them their voice on the A-1 school's future had ended. Their political and educational future was tied to district C, not to the A-1 school. They could enroll their children in C's schools or in A-1's school by transfer agreement, but they could not vote on A-1's existence.

For state-aid administrators, the opinion preserved an important escape hatch in SDC 15.2246: if so many A-1 parents requested transfers out that continued operation would drop the school below state-aid eligibility, the board could close the school despite the no-vote-yet status. The closure-vote mechanism was the default protection, but it was not the only way an unsupported school could close.

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: Up to a point. The board had to keep the school open absent a local closure vote. But if requested-transfer attrition pushed enrollment so low that state-aid eligibility under SDC 15.2246 was threatened, the board could close. SDCL 13-13-15's one-teacher-rural-school floor (ADM of 5, no school within 5 miles) provided a last-resort backstop for the truly tiny rural school.

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. Section 3 of Chapter 45 of the 1968 Session Laws made the closure vote binding on the board for the next fiscal year. The board could not override the local closure vote, though it could presumably build back support for reopening a school in a later year.

Q: Could residents of district C enroll their A-2 children in the A-1 school?
A: Yes, by tuition agreement. Question 3 acknowledged that district C could assign A-2 children to "such school or schools as they desire within the provisions of SDCL Section 13-28-15, and pay tuition." So an A-2 family that wanted A-1 schooling could ask district C to arrange a tuition placement back in district B's A-1 school. Both boards had to agree.

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. A board's refusal would be a mandamus-able failure to perform a duty under the statute. Resident electors could presumably file a circuit court action to compel the board 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 Ch. 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 "in operation as of" language anchored the requirement to a fixed date (December 5, 1968). A school that was operating on that date triggered the continued-operation duty. Whether a separate pre-July 1 closure could be effective was a question the opinion did not address, but the logic would suggest the continued-operation duty attached at December 5, 1968 and could not be evaded by a pre-July-1 board-initiated closure.

Background and statutory framework

By the late 1960s, South Dakota had hundreds of small "common school districts" (single-school districts, often rural one-room schools) and a smaller number of "independent school districts" (larger districts, often centered on a town). The Legislature concluded in 1967 that this multi-tier structure was administratively wasteful and unequal in educational quality, and that all common districts had to be merged into independent districts.

Chapter 38 of the 1967 Session Laws set the framework. County boards of education were directed to develop reorganization plans that distributed each common district's territory into one or more adjacent independent districts. The orders had to be issued by certain deadlines, with effective dates in mid-1969.

But Chapter 38 included an important political accommodation. Small rural communities had built and operated their own one-room and small elementary schools, often at considerable local sacrifice. Allowing the new larger independent district boards to close those schools immediately on absorption would have made the reorganization politically untenable.

So Chapter 38 amended SDC 15.2005(2) to require the absorbing independent districts to continue operating any elementary school that was in operation on the effective date (December 5, 1968) until the resident voters of the area that originally operated the school voted to close it. The vote could be triggered by a board resolution or by a 20% petition of the resident electors.

Section 3 of Chapter 45 of the 1968 Session Laws (a follow-up enactment) made the closure vote binding on the absorbing board, eliminating an obvious workaround (board ignores the vote and keeps the school open anyway).

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.

State aid to school districts under SDC 15.2246 was conditioned on certain enrollment minimums, fiscal practices, and operational standards. The closure-vote rule in 15.2005(2) included a saving clause: the rule did not apply if continued operation of the elementary school would make the district ineligible for state aid.

SDCL 13-13-15 set a floor below which even a closed-by-vote elementary school had to keep operating: a one-teacher rural school with an average daily membership of five or less, not within five miles by publicly traveled road of any other elementary school, was required to be operated.

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 Ch. 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)
- 1968 Session Laws, Chapter 45, Section 3 (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