May 4, 1978
Mr. Thomas C. Todd, State Superintendent
Division of Elementary and Secondary Education
Department of Education and Cultural Affairs
New State Office Building
Pierre, South Dakota 57501
Official Opinion No. 78-18
“Headstart” child, eligibility for kindergarten for 1978-79 school year
Dear Mr. Todd:
You have requested an opinion from this office based upon the following factual situation:
FACTS:
House Bill No. 1186 as enacted by the 1978 Legislature and effective July 1, 1978, reads as follows:
Section 1. That § 13.28-1 be amended to read as follows: 13-28-1. Every child who, before the first day of October, 1978, September, 1979, and any year following, shall have attained the age of five years and who has not attained the age of nineteen years, shall be deemed to be of legal school age.
Section 2. The effective date of this Act for a child who reached age five before the first day of November, 1977, shall be July 1, 1979. However, for the purposes of determining number of classrooms, full-time employees, or appropriations based on minimum foundation formula for the school district, the effective date shall be July 1, 1979.
SDCL 13-28-2 reads as follows:
No child shall be enrolled in kindergarten who is not of legal school age, and said child shall first become eligible for enrollment in the first grade one year thereafter.
Any child under the age of five shall be eligible for admittance to a nursery school.
The effect of House Bill 1186 for the school year 1978-79 would appear to be as follows:
1. A child who is five years old before the first day of October, 1978, is eligible to be enrolled in kindergarten.
2. A child who is six years old before the first day of November, 1978, is eligible to be enrolled in the first grade.
For a number of years now a federal program known as “Headstart” has been in effect in South Dakota. In general this program has been administered so a child would complete the last year of “Headstart” and then start kindergarten. Prior to the amendment of SDCL 13-28-1 by House Bill 1186 a child who would be five years old in October, 1978, was included in the last year program of “Headstart” in anticipation that he would then be eligible to start kindergarten. Section 2 does provide that a child who is six during the month of October, 1978, will be eligible to start first grade, but no provision was made for children who were enrolled in “Headstart” so that they would have the same privilege of starting kindergarten.
It is anticipated that legislation will be passed at the next session to provide for the conversion period of going from the first day of October to the first day of September in 1979 and children enrolled in “Headstart” can be considered at that time, but that is too late to take care of the problem for the start of the 1978-79 school year.
Based on the above facts, you ask the following question:
QUESTION:
May a child who has completed the last year of “Headstart” and will be five years old before the first day of November, 1978, be enrolled in kindergarten?
It is my opinion that the Legislature did make specific provisions in Section 2 of HB 1186 (Chapter 112, Session Laws of 1978) for a child who was five years old in October, 1977, to be eligible to start the first grade at the beginning of the 1978-79 school year, the effect being that such child who had taken kindergarten during the 1977-78 school term would not have to stay out of school one year before starting first grade.
It is also my opinion, since the “Headstart” program for the school year 1977-78 and prior years was keyed to the statutes in effect at that time, that during the 1978-79 conversion period a “Headstart” child who will be five years old in October, 1978, should be eligible to start kindergarten. It is recommended that the Legislature provide a remedy for the conversion period for the 1979-80 school year for both the “Headstart” child and the child who will be five in September, 1978. The answer to your specific question is yes.
Respectfully submitted,
William J. Janklow
Attorney General
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