July 9, 1992
Mr. Gerald L. Kaufman, Jr.
Attorney at Law
P.O. Box 176
Huron, SD 57350
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
