December 10, 1976
Mr. David M. Axtmann
Hyde County State's Attorney
Highmore, South Dakota 57345
OFFICIAL OPINION NO. 76-118
An elementary student as used in SDCL 13-30-1 is a student below the ninth grade
Dear Mr. Axtmann:
You have requested an opinion on the following situation:
FACTS:
Parents "X" with a 7th grade student and an 8th grade student moved into School District "A" prior to the start of school. Rather than send the students to a school in district "A," the parents enrolled the students in a school in School District "B." School District "A" has not made an assignment of the students to School District "B." The school the students attend in School District "B" is a 7-12 school and it is therefore contended that the 7th and 8th grade students should be considered secondary students rather than elementary students and therefore qualify as secondary students under the statutes applicable to secondary students.
On the basis of the foregoing you ask:
QUESTION:
Is a 7th or 8th grade student enrolled in a 7-12 school classified as an elementary or secondary student?
SDCL 13-30-1 and other statutes make specific reference to elementary and secondary students. I am unaware of any specific statute that defines an elementary student or a secondary student; however, it is common knowledge that educators and the public consider grades eight and under as being elementary and grades nine through twelve as being secondary.
ARSD 24:03:01:01 (23) is a rule adopted by the State Board of Education and defines elementary as follows:
(23) "Elementary," an educational program for any person classified below the ninth grade or for anyone under the age of fourteen prior to November first who is enrolled in an unclassified nongraded school program. Under South Dakota law and its interpretation this term applies in the application of foundation program state aid, tuition payments, compulsory transportation and attendance;
It is my opinion that the above rule defines the word elementary as used in the statutes dealing with the operation of schools by school districts and in answer to your specific question, a seventh or eighth grade student is an elementary student regardless of the type of school such student is attending.
This is also in conformity with the distinctions between lower grade and upper grade pupils noted in SDCL 13-13-22 and 13-13-23.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:GOH:rw
