February 1, 1982

Mr. Thomas C. Barnett, Jr. 
Post Office Box 498 
Philip, South Dakota 57567

Official Opinion No. 82-7

Free School Privileges

Dear Mr. Barnett:

On behalf of the Haakon School District No. 27-1 you have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Parents A and B are divorced.  Parent B, the father, is absent from the state.  Parent A and Student D were residing in Harrold, South Dakota, and Student D was enrolled in the high school at Harrold at the beginning of the 1981-82 school year.  Parent A had legal custody of Student D pursuant to the Decree of Divorce.  In October, 1981, Parent A moved from Harrold, South Dakota, to Rapid City, South Dakota.  C is the nineteen-year-old daughter of A and is a resident of Philip, South Dakota.  At the time A moved to Rapid City, A left Student D with C in Philip, South Dakota.  D enrolled in the Philip High School and began classes on or about October 20, 1981.  The Philip School demanded documentation to show the authority of C to exercise supervisory control over D and also an attempt to ascertain the residency for tuition purposes.  On or about November 25, 1981, Parent A executed a Special Power of Attorney, a copy of which is enclosed herewith, whereby Parent A grants to C the authority to exercise control over Student D.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Is Student D entitled to tuition-free education from the Philip School? 

2.  If the answer to Question 1 is negative, from whom should the tuition  be collected--the Harrold School District, the Rapid City School District, or Parent A?

As has been stated by my predecessors on numerous occasions, it is not the function of the Attorney General to determine school residency questions.  In the first instance, this is a determination to be made by the school district where the student seeks free school privileges and if the district's determination is unacceptable to the student or guardian, a court of competent jurisdiction will determine the matter.

IN RE QUESTION NO. 1:

SDCL 13-28-9 provides: 

School residency for the purpose of claiming free school privileges means the legal residence or domicile of the student's parents or legal guardian of the student.  The student, his parents or legal guardian may not establish school residence and be exempt from the payment of tuition if the residence of the parents or legal guardian of the student is acquired solely or principally for the purpose of obtaining free schooling.  When a child is enrolled in a school in a school district, the school residence of the child as determined within thirty days of the enrollment may not change during the school fiscal year, unless the child ceases to be an enrolled member of a  school within the district.

In order for a child to be entitled to free school privileges within any given school district, the child's parents or legal guardian must be a resident of the district.  I have reviewed the SPECIAL POWER OF ATTORNEY executed by Parent 'A,' referred to, whereby the parent attempts to give control over minor child 'D' to 'C.'  The document in question is not sufficient to establish a relationship of 'legal guardianship' of 'C' over child 'D.'  SDCL 30-26-5 provides: 

Any order appointing a guardian must be entered as and become a decree of the court.

In addition, SDCL 30-26-6 requires that exclusive jurisdiction to control the guardian in his relationship to the ward is vested in the circuit court. While the document you provided does give 'C' the power of attorney over child 'D,' it is not sufficient to create a guardian/ward relationship between the two.  The answer to Question No. 1 is that Student 'D' is not entitled to tuition-free education from the Philip School under the provisions of SDCL 13-28-9.  But see SDCL 13-28-10 and 1979-80 A.G.R. 222.

IN RE QUESTION NO. 2:

Based upon the facts presented, it would appear that unless SDCL 13-28-10  applies to this situation Parent 'A' would have been responsible for payment of tuition.  There is, however, a problem.  Reference to SDCL 13-28-9 reveals that the school board of a school district has thirty days to determine residency of the child.  Since the facts indicate that Child 'D' enrolled in the Haakon School District on October 20, 1981, and since this request for an Attorney General's opinion was not made until December 16, 1981, it becomes apparent that the Haakon School Board did not make the decision on residency within the thirty days allowed by SDCL 13-28-9.  In addition SDCL 13-28-24 provides: 

Those students who must personally pay tuition or the parents and guardian of said students, shall pay in advance the annual or monthly legal amount of tuition; and if such student should cease to be a member of said school before the expiration of the term for which the tuition has been paid, the unearned portion of such tuition shall be refunded by the school board upon the presentation of proper voucher therefor.  [Emphasis supplied.]

Since the Legislature has established a time frame within which residency decisions must be made by school boards and since the statute set out above provides a completely effective method for the school board to protect itself in these situations, and since the Haakon School Board has failed to make the decisions required and has failed to collect the tuition in advance, it is my opinion that Child 'D' may continue for the remainder of this school year  without payment of tuition.  The answer to Question No. 2 is that due to laches on the part of the school board there is no tuition to be collected from anyone.

Respectfully submitted,

Mark V. Meierhenry
Attorney General