Can a South Dakota school district let children attending a preschool operated by a local church ride the public school buses to and from preschool, if the buses are not rerouted and the public-school students are also riding?

Plain-English summary

A church inside the Wolsey School District wanted to open a preschool. Enrollment would be open to the general public, not limited to church members. The church asked the school district whether the preschool children could ride the regular public school buses, on the regular routes, to and from the preschool. The district was willing because no extra public money would be spent: the buses were already going past those stops.

The AG said no based on the school-bus statutes and separately raised serious constitutional doubts.

The first ground was statutory. South Dakota's school-bus statutes carve out two distinct exemptions from motor carrier regulation. SDCL 13-29-1 (with SDCL 49-28-2(1)) covers buses used "solely" for school attendance and school activities authorized by the school board. SDCL 13-24-20 covers buses rented or granted by the school board to a nonprofit organization for community-service use, provided the use does not interfere with school activities. The AG read the word "solely" in the school-attendance exemption as critical. The Legislature meant the two exemptions to apply in the alternative, not together. So a bus could be used for school transportation, or it could be loaned to a community-service organization, but it could not do both at the same time.

The Brown v. Egan Consolidated School District case from the South Dakota Supreme Court underscored that the two statutes addressed distinct factual areas. The court had refused to import the immunity language from SDCL 13-29-1 (school use) into SDCL 13-24-20 (community-service use). The 1992 AG applied the same logic to the simultaneous-use question.

The AG then discussed the South Dakota Constitution. Article VI, section 3 prohibits state money or property being given or appropriated for the benefit of a sectarian or religious society or institution. Article VIII, section 16 prohibits appropriations of lands, money, or property to aid a sectarian school by the state, a county, or a municipality. The AG cited South Dakota Supreme Court decisions reading these provisions more restrictively than the federal constitution and describing a prohibition on aid "in every form."

The AG reasoned that using a school bus to bring children to the church's preschool would benefit the church by relieving it of the need to arrange transportation, even if the preschool activity was not religious. He could not characterize that benefit as incidental under the cited St. Mary's case. Still, he said only that he had "grave doubts" about constitutionality and that the church's operation of the preschool "may be sufficient" to invoke the prohibition.

The opinion's definite conclusion was that the Wolsey School District could not provide the requested simultaneous bus service. It did not decide whether the Constitution independently barred that service or answer the separate question about charging families or the preschool.

Currency note

This opinion was issued in 1992. 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. The relationship between state constitutional bars on sectarian aid and federal religion-clause doctrine has developed considerably since 1992, and South Dakota's school-bus statutes may have been amended. Anyone considering an analogous arrangement today should consult the current SDCL provisions and current South Dakota Supreme Court precedent on Art. VI sec. 3 and Art. VIII sec. 16, as well as current federal law.

What the opinion meant at the time

For the Wolsey School District board, the opinion concluded that the requested simultaneous use of school buses lacked statutory authority, even though the buses would stay on regular routes and stops and the district expected no additional public expenditure.

For the church operating the preschool, the opinion says the district could not provide the requested bus service. It does not evaluate alternative transportation arrangements.

For other school districts considering simultaneous public and private bus use, the AG read SDCL 13-24-20, 13-29-1, and 49-28-2(1) together and concluded that the existing statutory scheme did not permit it. His constitutional discussion raised doubts about this church-operated preschool proposal without deciding a broader constitutional rule for other situations.

For school attorneys, the opinion distinguishes the school board's discretion under SDCL 13-24-20, considered alone, from the limit the AG found when that provision was read with SDCL 13-29-1 and 49-28-2(1). It does not decide a separate trip, another preschool structure, or other specific uses.

For parents, the opinion rules out the requested simultaneous bus service. It does not answer whether charging a family or preschool would change the analysis, although the AG noted that a fee charged by the church for preschool attendance would make the church's benefit from the bus service clearer.

Common questions

Q: Could the church reimburse the school district for the cost of the busing?
A: The requester asked whether charging the family or preschool would change the answer. The AG did not answer that question separately. He rejected the simultaneous bus service under the statutes and expressed constitutional doubts about the proposal.

Q: What about a non-religious preschool operating in a church building?
A: The opinion does not decide that situation. It mentions a possible "separate, nonprofit entity" only while framing the statutory question about bus use. It does not analyze whether such an entity would change the constitutional concerns.

Q: Could the school district provide bus service at a separate time, not simultaneous with school use?
A: The opinion does not decide a separate bus trip. It describes conditions for community-service use under SDCL 13-24-20 and related motor-carrier provisions, but its holding concerns simultaneous public school and private preschool transportation.

Q: What does "every form" of aid mean under the South Dakota Constitution?
A: The phrase is from the SD Supreme Court's interpretation of Art. VI sec. 3 and Art. VIII sec. 16. The court has read those provisions more strictly than the federal Establishment Clause. Even non-monetary benefits, like the use of state-owned property, count as aid. The Synod of Dakota, McDonald, and Certification of a Question of Law cases all reinforced that interpretation.

Q: Was the St. Mary's Inter-Parochial High School case a counter-example?
A: The AG cited St. Mary's when considering whether the church's benefit from district bus service could be incidental. He said he was unable to make that finding because the service would spare the church from arranging transportation. He still expressed constitutional doubts rather than a definitive holding.

Q: What was the takeaway from Brown v. Egan Consolidated?
A: The case stood for the proposition that SDCL 13-29-1 (school-use immunity) and SDCL 13-24-20 (community-service use) addressed distinct factual areas. The 1992 AG used that holding to bolster the statutory reading that the two exemptions could not be combined to produce simultaneous public and private use.

Q: Did the AG consider the federal Establishment Clause analysis?
A: The AG said South Dakota Supreme Court decisions read the state provisions more restrictively than the federal constitution. He expressed grave doubts about the proposed bus service under those provisions, but made no definitive ruling about a federal constitutional analysis or an independent state constitutional violation.

Q: Could the church operate a preschool open to all faiths and still face the constitutional bar?
A: The preschool in the question was open to the public, and the AG said the activity need not be religious for the church to receive a benefit from district transportation. He had grave constitutional doubts but rested his conclusion on the lack of statutory authority for simultaneous bus use.

Background and statutory framework

South Dakota's regulation of school buses had grown through several layers of statute by 1992. The core provision, SDCL 13-29-1, authorized school districts to transport children to school and to school activities at board direction. SDCL 13-24-20 added a narrower track: the board could rent or grant use of a bus to a nonprofit organization for community service, provided the use did not interfere with school activities and the user accepted the liability burden. SDCL 49-28-2(1) coordinated those two with the state's motor carrier law by exempting school buses from the motor carrier definition when used either "solely" for school transportation or under a SDCL 13-24-20 grant.

The word "solely" in SDCL 49-28-2(1) was what the AG hung the simultaneous-use prohibition on. If a bus could be used "solely" for school transportation as one exemption, and "rented by or their use has been granted to a nonprofit" as a separate exemption, then the Legislature did not intend the two uses to occur at the same time. Brown v. Egan Consolidated School District reinforced that reading by treating the two exemptions as governing distinct factual areas.

The AG also discussed Article VI, section 3 and Article VIII, section 16 of the South Dakota Constitution. He cited Synod of Dakota, McDonald, and Certification of a Question of Law for the state courts' restrictive reading of those provisions and questioned whether the proposed transportation would confer a prohibited benefit on the church.

The AG concluded that the Wolsey School District could not provide the requested simultaneous service under the existing bus statutes. He expressed grave doubts about constitutionality even if statutory authority existed, but did not decide that issue or address a separate non-simultaneous arrangement.

Citations and references

Statutes and constitutional provisions:

• SDCL 13-24-20 (school board may allow community-service use of buses)
• SDCL 13-29-1 (school district transportation authority for school activities)
• SDCL 49-28-2(1) (school bus exemption from motor carrier definition)
• S.D. Const., Art. VI, sec. 3 (no state money or property for sectarian or religious institutions)
• S.D. Const., Art. VIII, sec. 16 (no appropriation of lands, money, or property to aid any sectarian school)

Cases:

• Synod of Dakota v. State, 50 N.W.2d 632 (S.D. 1891) (no aid "in every form" to sectarian institutions)
• McDonald v. School Board of Yankton Independent School District No. 1, 246 N.W.2d 93 (S.D. 1976)
• Certification of a Question of Law from the United States District Court, District of South Dakota, Southern Division, 372 N.W.2d 113 (S.D. 1985)
• South Dakota High School Interscholastic Activities Association v. St. Mary's Inter-Parochial High School, 141 N.W.2d 477 (S.D. 1966) (incidental benefit doctrine)
• Brown v. Egan Consolidated School District, 449 N.W.2d 259 (S.D. 1991) (SDCL 13-29-1 and 13-24-20 address distinct factual areas)

Prior AG opinions referenced:

• AGR 84-41

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=105

Original opinion text

OFFICIAL OPINION NO. 92-04

Busing to Church Operated Preschool

Dear Mr. Kaufman:

On behalf of the Wolsey School District, you have requested an opinion from me concerning the following factual situation:

FACTS:

A local church within the Wolsey School District plans to begin operation of a preschool in the fall. Enrollment is open to the public, as compared to a closed enrollment for only children of church members. The Wolsey School District Board of Education has been approached by the church with a request that the children attending the preschool be allowed to ride the public school buses to and from preschool. The school buses would not deviate from normal routes and stops utilized in transporting public school students. The District is willing to provide the bus service, as no public funds would be expended beyond that necessary for regular public school transportation. Previous Attorney General Opinions do not address transportation as it relates to a preschool.

Based upon these facts, you have asked the following questions:

QUESTIONS:

May the District provide the transportation requested by the preschool without violating Article VI, section 3 and Article VIII, section 16 of the South Dakota Constitution?

Would the answer to question #1 be the same whether the transportation was provided by the district at no cost to the families or preschool, or alternatively a charge was assessed to either the family or preschool for the transportation service?

IN RE QUESTION NO. 1:

Pursuant to state statutes a school district has the discretion to allow others to use school buses if certain conditions are met. SDCL 13-24-20 provides that if the school board determines that the proposed use is "a community service," it may allow any "person or persons or public body" to use the bus if the use does not "interfere with school activities." Those making such use of the bus are responsible to the district for all damages caused by such use, and the statute provides that the school district is not liable for any suit for damages arising from such use. See also SDCL 13-29-1.

SDCL 49-28-2(1) goes on to provide in pertinent part that school buses are excluded from the definition of a motor carrier, if "rented by or their use has been granted to a nonprofit club, organization, fraternal society, association or corporation under 13-24-20 for the transportation of persons under the age of twenty-one years." Of course, certain requirements have to be met in order to avoid classification as a motor carrier. The movement of the vehicle is restricted to a 100 mile radius, the driver must be fully qualified to drive the bus, and "the motor vehicle must be covered by an insurance policy similar to, with the limits no less than, the insurance coverage which is in effect while the motor vehicle is used for the transportation of school children, school personnel or other adult persons authorized by the school board of a school district in connection with school activities."

There appears to be some inconsistency between the breadth of SDCL 13-24-20, which applies to "any person or persons or public body" and the language of SDCL 49-28-2(1) which deals with SDCL 13-24-20 only in terms of "a nonprofit club, group, organization fraternal society, association or corporation." See, e.g., AGR 84-41. Assuming, however, that the church which owns the preschool will be the entity responsible for the use, or that the preschool is a separate, nonprofit entity, the question then becomes whether the Legislature contemplated that the private use of a bus pursuant to SDCL 13-24-20 and the public use of the bus can be made simultaneously.

Initially, the standards under SDCL 13-24-20 for private use of school property are determinations by the school board that the purpose for the private use is a "community service," and that the private use does not "interfere with school activities." Those seem to me to be factual determinations within the discretion of the school board. Nothing on the face of that statute would prohibit simultaneous public and private use of a bus, provided that the school board makes those determinations.

Secondly, it must be determined whether reading the relevant statutes together yield a different result. In short, do SDCL 13-29-1 and SDCL 49-28-2(1) limit the breadth of discretion found in SDCL 13-24-20. I note that SDCL 49-28-2(1) exempts school buses from the definition of a motor carrier in two instances. The first is when the bus is used "solely" for the transportation authorized by SDCL 13-29-1, that being for school attendance or for school activities as authorized by the school board. The second is when use of the bus is rented or granted to a group pursuant to SDCL 13-24-20. These two exceptions are separated in the statute by the use of the word "or."

While the word "or" may, or may not indicate the disjunctive, when it is considered in connection with the word "solely" in the first exception, I am convinced that the legislature did not intend that the two types of uses excepted from regulation would occur simultaneously. It must be presumed that the Legislature intended that the word "solely" be given effect. Therefore, even though the public and the private use of a school bus considered individually would be exempted from motor carrier regulation, it does not appear that simultaneous uses likewise are exempt.

The South Dakota Supreme Court in Brown v. Egan Consolidated School District, 449 N.W.2d 259 (S.D. 1991) emphasized the separation between the two exceptions in SDCL 49-28-2(1) in finding that immunity language in SDCL 13-29-1 was simply to prevent stacking of liability coverage when a bus is used by an organization pursuant to SDCL 13-24-20. The district had argued that the immunity in SDCL 13-29-1 applied to use of the bus for school purposes as well as when outside groups were granted use of the bus. The Court disagreed, finding that the language of the statutes addressed two distinct areas. While the case is not controlling here, I find that the situation here is analogous in that the statutory language used is indicative of the legislative intent as to how the three pertinent statutes are to be harmonized.

Therefore, while it is possible to construe SDCL 13-24-20 to allow simultaneous public and private use if that statute is considered alone, when the entire scheme on public and private use of school buses is considered, it is my opinion that simultaneous public and private use of a school bus is not permissible under the existing statute. I am of the opinion that the school board lacks the statutory authority to transport private, preschool children at the same time that it is using the bus for school purposes.

I should point out that I have serious doubts whether such an arrangement would be permissible under the state constitution, even if it was allowed by statute. Article VI, section 3 of the South Dakota Constitution provides in pertinent part:

"No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution."

In a similar vein, Article VIII, section 16 provides:

"No appropriation of lands, money or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift or bequest of lands, money or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state."

Our state Supreme Court has consistently given these two constitutional provisions an interpretation which is more restrictive than the federal constitution, pointing out that the state provisions prohibit aid "in every form." Synod of Dakota v. State, 50 N.W.2d 632, 635 (S.D. 1891); McDonald v. School Board of Yankton Independent School District No. 1, 246 N.W.2d 93, 98 (S.D. 1976); Certification of a Question of Law from the United States District Court, District of South Dakota, Southern Division, 372 N.W.2d 113, 116 (S.D. 1985). If money or property of the state is going for the benefit of a sectarian or religious society or institution, for sectarian purposes, or to the aid of a sectarian school, then the constitutional provisions would prohibit state involvement.

Given the strict interpretation the South Dakota Supreme Court has afforded our constitutional language, the fact that the religious organization operates the preschool may be sufficient to invoke the constitutional prohibition. School district property would be used to bring students to an activity conducted by a religious organization. It does not matter that the activity is not religious in nature. The religious organization is benefited to the extent that no other arrangements need be made to get students to their preschool. The benefit is even clearer if the religious organization charges a fee to attend the preschool. I am unable to conclude that this use of the school district's bus would be an incidental benefit under the rationale of South Dakota High School Interscholastic Activities Association v. St. Mary's Inter-Parochial High School, 141 N.W.2d 477 (S.D. 1966).

Thus, I would have grave doubts about the constitutionality of the proposal, even if the statutory authority existed to permit simultaneous private and public uses of school buses. It is my opinion that the Wolsey School District may not provide the requested bus service.

Respectfully submitted,

MARK BARNETT

ATTORNEY GENERAL

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