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 on two separate grounds.
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 second ground was constitutional. Article VI, section 3 of the South Dakota Constitution prohibits state money or property being given or appropriated for the benefit of any sectarian or religious society or institution. Article VIII, section 16 specifically prohibits appropriations of lands, money, or property to aid any sectarian school, by the state, any county, or any municipality (which includes school districts). The South Dakota Supreme Court had consistently read these provisions more restrictively than the federal Establishment Clause, holding that the state cannot give aid "in every form" to sectarian institutions.
The AG concluded that using school district property to deliver children to an activity run by a religious organization, even a non-religious activity, would benefit the religious organization (the church no longer had to arrange separate transportation). The benefit was direct enough to trigger the state constitutional prohibition. The AG distinguished the SDHSAA v. St. Mary's case, which had allowed certain incidental association memberships, because the bus arrangement was not similarly incidental.
So even if the school-bus statutes had permitted simultaneous public and private use, the constitution would have stopped this particular arrangement. The Wolsey School District could not provide the bus service.
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 interplay between state constitutional bars on sectarian aid and federal free-exercise doctrine has evolved substantially since 1992 (the U.S. Supreme Court's decisions in Trinity Lutheran, Espinoza, and Carson v. Makin have changed the federal landscape, and South Dakota statutes have been amended). Anyone considering an analogous arrangement today should consult current SDCL provisions, current South Dakota Supreme Court precedent on Art. VI sec. 3 and Art. VIII sec. 16, and the post-Carson federal landscape.
What the opinion meant at the time
For the Wolsey School District board, the opinion ended the conversation. The district could not bus children to the church preschool, even on existing routes with no schedule disruption and no extra public money out the door. The transportation request had to be declined.
For the church operating the preschool, the opinion meant that any community demand for preschool transportation had to be met through private arrangements: parent drop-off, a separate church-operated van, or a private contractor. The school bus was not an option.
For other South Dakota school districts considering similar requests, the opinion supplied a usable two-step analysis. Step one: is simultaneous public-and-private use of the bus permissible under the statutes? After this opinion, the answer was no. Step two: even if step one were yes, would the use benefit a sectarian or religious institution? If yes, the state constitution barred the arrangement.
For school attorneys advising districts in any close case (busing for a parent-cooperative preschool, busing for a nonprofit but non-religious community organization, busing for an interfaith group), the opinion provided clear distinctions. Non-religious nonprofit community-service use under SDCL 13-24-20 was still potentially available, but only when the bus was not simultaneously being used for school transportation. A separate community-service trip on the bus, at a separate time, was permissible if it met the SDCL 13-24-20 conditions (board finding of community service, no interference with school activities, mileage limit, qualified driver, equivalent insurance).
For parents of children at church-operated preschools, the opinion clarified that they could not look to the public school district for transportation help, even when no marginal cost was involved. The constitutional analysis cared about benefit to the religious institution, not the marginal financial cost to the state.
Common questions
Q: Could the church reimburse the school district for the cost of the busing?
A: The opinion's constitutional reasoning would not have been satisfied by reimbursement. The state constitutional prohibition focused on the benefit to the religious institution (saving the cost of arranging separate transportation), not on the cost to the state. Reimbursement does not change which institution receives the benefit of school district transportation infrastructure.
Q: What about a non-religious preschool operating in a church building?
A: The opinion did not directly answer that, but the AG flagged a possible distinction. If the preschool was a "separate, nonprofit entity" not under the religious organization's control, the constitutional concern might be less. The opinion still concluded the statutory bar on simultaneous use would apply.
Q: Could the school district provide bus service at a separate time, not simultaneous with school use?
A: Yes, under SDCL 13-24-20, if (a) the school board determined the use was a community service and would not interfere with school activities, (b) the user was a qualifying nonprofit, (c) the operating conditions (mileage radius, qualified driver, equivalent insurance) were met, and (d) crucially, the user was not a sectarian institution for purposes of state constitutional analysis.
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 explicitly distinguished it. St. Mary's concerned whether a parochial school could be a member of the state's interscholastic activities association. The court treated the benefit there as incidental. The AG concluded that bus transportation was not similarly incidental, since the church would have to find substitute transportation otherwise.
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 noted that the state constitutional provisions were more restrictive than the federal Establishment Clause, so even if a federal analysis would have permitted the busing, the state constitution would not. The federal cases (like Mueller v. Allen, Witters, Zobrest) that allow certain forms of aid to religious institutions under federal doctrine were not enough to overcome the state bar.
Q: Could the church operate a preschool open to all faiths and still face the constitutional bar?
A: Yes, under the 1992 analysis. The bar focused on benefit to the religious organization, not on the religious content of the preschool's curriculum. A religiously-operated preschool with no religious instruction still benefited the church by saving it the cost of arranging transportation.
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 South Dakota Constitution's church-state provisions, Art. VI sec. 3 and Art. VIII sec. 16, were the second layer. The South Dakota Supreme Court had read those provisions strictly since the Synod of Dakota case in 1891 and had reaffirmed that strict reading in McDonald v. School Board of Yankton (1976) and the Certification of a Question of Law case (1985). The "in every form" language meant that state-owned property used to convey benefit to a sectarian institution implicated the constitutional bar even when no direct money transfer occurred.
The 1992 AG synthesized those two layers. The first independently barred the simultaneous-use arrangement. The second independently barred even a non-simultaneous arrangement specifically benefiting a religious institution. The conclusion was the same either way: the Wolsey School District could not provide the requested bus service.
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
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
MB:HHD:sks