April 14, 1975
Representative Ronald K. Miller
Kimball, South Dakota 57355
OFFICIAL OPINION NO. 75-70
Closing an elementary school attendance center under SDCL 13-6-9
Dear Representative Miller:
You have submitted the following factual situation:
The facts are that grades one through five inclusive are being taught at Pukwana, and the Chamberlain Independent School District through its school board is proposing to bus the first, second, fourth and fifth grades from Pukwana to Chamberlain and Oacoma, and to bus the Chamberlain and Oacoma third graders to Pukwana, South Dakota. Realizing that under 13-28-15 the board may assign students, I am wondering if under 13-6-9 the Chamberlain school board could in the year following close the Pukwana school for the reason that there will only be three students from Pukwana in attendance in the third grade, all the rest will be third graders from Chamberlain and Oacoma.
You have requested an opinion on the following question:
Is the Chamberlain Independent School District authorized under SDCL 13-6-9 to offer only third grade at the Pukwana attendance center?
SDCL 13-6-9 reads as follows:
The school board of an independent school district shall continue to operate an attendance center or elementary school operated by a common school district during the 1968-69 school year until such time as only the resident voters of the former common district area which operated said elementary school shall vote to cease operating said school or schools. Such election shall be called by the school board of the independent school district by resolution or upon a petition by twenty percent of the electors residing in such area and shall be conducted in accordance with the laws governing elections in independent school districts, provided, however, that the provisions of this section shall not apply to any elementary school which by its continued operation would make the district ineligible for state aid under the provisions of §§13-13-10 to 13-13-41, inclusive. The board shall have the authority to close such a school when the average daily membership does not exceed three and bus service is provided within two and one half miles of pupils' residence. When a rural school has been closed for two consecutive years by board action, but no election has been held, such school shall be considered to have been closed by the electors, but may be reopened at the option of the board.
It is my understanding that Pukwana was an attendance center operated by a common school district in 1968-69 school year and is therefore subject to the provisions of SDCL 13-6-9.
In the case of Choal v. Lyman Independent School District #12, 87 S.D. 682, 214 N.W. 2d 3 (1972), the South Dakota Supreme Court considered SDCL 13-6-9 and whether or not a violation of its provisions existed when the defendant board of education assigned seventh and eighth grades out of the Reliance school to the Kennebec school, without a vote under SDCL 13-6-9. The court found that the statute had not been violated, there being no explicit definition of the number of grades necessary to constitute an "elementary school." Since the court found that the Reliance school still operated grades one through six, there had not been an improper closing of the school under SDCL 13-8-9.
Although the court did not decide what grades are necessarily included within the scope of "elementary school" in SDCL 13-6-9, it is my opinion that at least grades one through five are elementary. I would agree with Justice Winans' dissenting opinion in Choal in that a school board ought not be permitted to subvert the intent of SDCL 13-6-9 by "transferring" grades through calling them something other than "elementary" and thereby close a school indirectly when statute law prohibits them from doing so directly. Accordingly it is my opinion that "elementary school" in SDCL 13-6-9 contemplates at least grades one through five and that these grades cannot be "redefined" or "assigned," thereby indirectly closing elementary schools in violation of SDCL 13-6-9. The answer to your question is NO!
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:GOH:DOC:rw
