If one child in a South Dakota family already attends a neighboring (nonresident) school district under open enrollment, must the nonresident district also accept a sibling who needs special education services it cannot provide, just to keep the family in one district?
Plain-English summary
South Dakota lets K-12 students attend a public school outside the school district where they live by applying for "open enrollment." Counsel for the Meade County School District (in west-central South Dakota) wrote to the Attorney General about an awkward situation under that open-enrollment statute. One child in a family had already been admitted to Meade County by open enrollment. A sibling in the same household now wanted to open-enroll too. The sibling, though, needed special education services that Meade County was not in a position to provide.
The family-household provision of SDCL 13-28-44 says that if denying open enrollment would force siblings into different school districts, neither the home district nor the receiving district may deny the application. Read in isolation, that sounded like Meade County had to take the second child no matter what.
But the same statute contains a second sentence aimed specifically at children who need special education. That sentence says that siblings may open-enroll together only if the receiving district can provide an appropriate special education program and the related services and transportation. If it cannot, it may deny the special-education sibling's application.
AG Jason Ravnsborg read the two sentences together and concluded the special-education sentence is a real exception, not just decoration. A nonresident district that cannot provide an appropriate special education program may deny an open enrollment application even if a sibling from the same family is already enrolled. The statute used the word "however" between the two sentences for a reason; the second sentence qualifies the first.
The opinion turned on a routine principle of statutory interpretation: read the law as a whole, give effect to every word, and do not treat any part of the statute as surplusage. If the family-household rule swallowed the special-education exception, the Legislature's careful language would be meaningless.
What this means for you
For school district administrators and boards. When you receive an open enrollment application for a child with an IEP or other special education needs, do not assume the family-household provision in SDCL 13-28-44 locks you in. Run the analysis the statute actually requires: can your district provide an appropriate program and related services, including transportation, for this particular student under SDCL 13-28-42.1? If not, you may deny the application even when a sibling is already enrolled. Document the analysis. Be prepared to explain to the family in plain terms why you reached the decision; the legal framework can feel harsh, and a clear explanation reduces the chance of an appeal escalating.
For special education directors. This opinion makes it more important, not less, to assess capacity honestly when an open enrollment application arrives. The fact that a sibling is in the district does not change the SDCL 13-28-42.1 analysis. Do not promise to absorb a student whose needs you cannot meet just to preserve a family unit; SDCL 13-28-44 anticipates that some families will have children in different districts when one district cannot deliver appropriate services.
For parents of a special-needs student considering open enrollment. Read this opinion before banking on the family-household rule. If your other child is already open-enrolled in District B, that does not automatically guarantee that your child with special education needs will also be admitted. Ask the receiving district directly whether it can meet your child's specific IEP services and transportation needs. If the district says no, the AG's opinion gives them legal cover. If you disagree with the district's assessment, your remedy runs through the special education due process system, not through the open enrollment provisions.
For school district attorneys. This is a clean statutory-interpretation opinion. The "however" hinge in SDCL 13-28-44 reflects deliberate legislative drafting. If your client has been told by another district that the family-household rule trumps the special-education provision, you have an AG opinion on point pointing the other direction. Keep in mind that the opinion is persuasive, not binding; a court could still parse the statute differently, particularly if a sympathetic factual record were developed.
Common questions
Q: Does the AG opinion mean any nonresident district can refuse to take special-needs kids?
A: No. The exception applies only when the district cannot provide an appropriate program for the student in question. A district cannot reject a special-needs student just because special education is more expensive than general education. The SDCL 13-28-42.1 analysis must be honest and tied to the specific student's IEP requirements.
Q: What does "appropriate special education instructional program" mean?
A: SDCL 13-28-42.1 sets the criteria. In practice, the district looks at whether it has the personnel, the facilities, the curriculum modifications, and the related services (speech, OT, PT, behavioral, transportation) that the student's IEP calls for. A district that runs only mild-to-moderate programs is not obligated to spin up an intensive autism program just because a sibling is already in the district.
Q: Can the resident district fight back if the nonresident district denies the special-needs sibling?
A: The opinion does not address that question directly, but the resident district remains obligated to provide appropriate services to its own student. If the family stays in the resident district, the resident district handles the IEP. If only the general-education sibling open-enrolls into the other district, the family ends up with siblings in two districts, which is the very situation the family-household provision normally tries to prevent. The Legislature decided that this outcome is acceptable when the alternative is forcing a district to provide special education services it cannot deliver appropriately.
Q: Does this opinion override the federal IDEA right to a free appropriate public education?
A: No. The student remains entitled to FAPE in the district that is responsible for them. The open enrollment statute is a state-law mechanism for choosing among public schools; it does not reduce the IDEA obligations of whichever district the student ends up attending.
Q: If I am the family, what should I do before applying?
A: Talk to the special education director in the nonresident district about your child's IEP. If they tell you the district cannot meet the needs, you have early notice that the open enrollment application will likely be denied. Use that conversation to evaluate whether the resident district is actually a worse option, or whether transferring only your other child is realistic, before committing the family to the application process.
Background and statutory framework
South Dakota's open enrollment law (SDCL chapter 13-28, sections 40 to 47) is part of a national wave of state-level school choice statutes that allow students to attend public schools other than their assigned home-district school. The general principle is mutual: students may apply, and a nonresident district must accept unless certain quality-of-program or capacity reasons justify denial.
The family-household provision in SDCL 13-28-44 reflects a separate policy concern: keeping siblings together so a family does not have to manage drop-offs and pickups across multiple districts. When the Legislature added that provision, it carved out a specific exception for special education situations. Special education programs require trained staff, specialized facilities, and individualized service plans; a district that does not run the right kind of program cannot conjure one up to take a single open-enrollment student.
Ravnsborg's analysis followed standard South Dakota statutory construction. The Supreme Court has held repeatedly that statutes must be read as a whole and that the Legislature does not insert surplusage into its laws. Olson v. Butte County Commission, 2019 S.D. 13. The word "however" between the family-household sentence and the special-education sentence was the analytical hinge: it signals a deliberate qualification rather than an unrelated rule. In re Taliaferro, 2014 S.D. 82, reinforced the principle that every word in a statute must be given meaning.
The opinion is consistent with how other states' open-enrollment statutes handle the same tension. Most state schemes recognize that schools cannot be forced to accept special education students they cannot serve, even where general family-unity policies otherwise apply. South Dakota's statute spells out the exception explicitly, leaving Ravnsborg only with the task of explaining how the two sentences fit together.
Source
Original opinion text
Official Opinion No. 20-01
Re: Open Enrollment of Special Education Students
Dear Mr. Nies,
In your capacity as counsel for the Meade County School District you have requested an official opinion from the Attorney General's Office on the following question:
QUESTION:
Can a nonresident school district deny an application for open enrollment if a member of the applicant's family is already enrolled in the district, but the district cannot provide an appropriate special education instructional program or appropriate special education related services?
ANSWER:
Pursuant to SDCL 13-28-44, a nonresident school district may deny an open enrollment application due to the nonresident district's inability to provide a student seeking to open enroll an appropriate program of special education instruction or related services.
FACTS:
The above question has arisen between the Meade County School District and a neighboring district and involves the potential open enrollment of a student requiring appropriate special education instruction or related services. Another member of the student's household has already open enrolled in the Meade County School District.
IN RE QUESTION:
SDCL 13-28-40 establishes an open enrollment option for students attending kindergarten through twelfth grade in South Dakota. Subject to the provisions of SDCL 13-28-40 through 13-28-47, any K-12 student has the option to attend any public school in any school district that serves the student's grade level. SDCL 13-28-40. An application for open enrollment must be submitted for any student wishing to enroll in a nonresident school district or wishing to attend a school other than the one to which the student has been assigned. SDCL 13-28-43. A school district must grant an open enrollment application unless doing so "would result in an inability to provide a quality educational program based on criteria established … pursuant to [SDCL] 13-28-44."
SDCL 13-28-44 directs school boards to adopt standards for the acceptance and rejection of an application to open enroll in a district. Of specific relevance to your inquiry, SDCL 13-28-44 states in pertinent part:
If two or more children from a family residing in the same household must enroll in different school districts as the result of a board's denial of an application to transfer from a resident district or to enroll in a nonresident district under the provisions of §§ 13-28-40 to 13-28-47, inclusive, neither the resident board nor the nonresident board may deny the application. However, two or more children from a family residing in the same household who are eligible for kindergarten through twelfth grade may open enroll only if, pursuant to § 13-28-42.1, the nonresident district can provide an appropriate instructional program and facilities, including transportation, for the child in need of special education or special education and related services. If the nonresident district cannot meet the provisions of § 13-28-42.1 for the child in need of special education or special education and related services, the nonresident district may deny that child's application for open enrollment.
Your request concludes that two sentences emphasized above are inconsistent. You have asked which sentence takes priority over the other; whether a district must enroll all members of a household, even if it cannot comply with the requirements of SDCL 13-28-42.1, or whether the district has the right to deny an open enrollment application based on an inability to comply with SDCL 13-28-42.1.
In reviewing a statute, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Commission, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 5, 636 N.W.2d 675, 681).
When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. When we must, however, resort to statutory construction, the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language.
In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (citations omitted). The intent of a statute "'must be determined from the statute as a whole, as well as enactments relating to the same subject.'" In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 807 (citations omitted).
The language of SDCL 13-28-44 is unambiguous, and as such, I must give it the meaning and intent that is clearly expressed.
The first sentence of SDCL 13-28-44 mandates that a nonresident school district may not deny an application for open enrollment if the denial would result in two or more students from the same household being enrolled in different school districts. The second sentence of SDCL 13-28-44 qualifies the first sentence to the extent that the nonresident school district must be able to provide an appropriate instructional program and facilities for a student seeking to open enroll who requires special education instruction or related services. The use of the word "however" to begin the second sentence of the statute clearly signals this qualification. The final sentence of SDCL 13-28-44 applies this qualification and unambiguously establishes that despite the language of the first sentence of the statute, if a nonresident school district cannot provide an appropriate special education instructional program, or appropriate special education related services, the nonresident district may deny the open enrollment application for the student requiring special education or related services. To determine whether a school district can provide an appropriate special education instructional program or related services, the school district must follow the requirements and direction of SDCL 13-28-42.1.
CONCLUSION
I conclude, based on the plain language of SDCL 13-28-44, that a nonresident school district may deny an open enrollment application due to the nonresident district's inability to provide a student seeking to open enroll an appropriate program of special education instruction or related services.
Sincerely,
Jason R. Ravnsborg
ATTORNEY GENERAL
JRR/SRB/lde