STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 21, 1966

Louis K. Freiberg
State Representative, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 67-68 pg. 48

Schools & School Districts. Transportation allowance for elementary and high school students.

You have requested my opinion relative to the following factual situation:

"Grade school child X resides five and one half miles from  the nearest school operated by his resident common school district. There is another school operated by the resident district which is farther away from X's residence. In X's home are high school students who attend a high school operated by an independent school district some seventeen miles from the  residence. The common school district furnished neither transportation nor board and room allowance for such high school students."

Based upon this factual situation, you have asked the following questions: 

"1. Is the common school district required to pay transportation or board and room in lieu of transportation for the high school students attending the independent district?

"2. In view of the distance the grade school child lives from the nearest school in the common district, is the common district required to pay transportation and/or tuition to the independent district where the grade school child is attending school?

"3. If the answer to the above question is that transportation for the grade school child cannot be collected or charged for attending the independent school, then, in such an event, can the parent collect transportation for mileage to the nearest common school in the district although the child does not attended there but by choice goes to the independent district with the high school children?"

In answer to Question No. 1 it is settled that the granting or withholding of transportation, or board and room in lieu of transportation for high school students, lies within the sound discretion of the governing body of the home school district. SDC 1960 Supp. 15.3009(3) as amended. See my opinion of July 19, 1966 to James Hare, State's Attorney of Hand County, and the decisions reported in 1963-64 AGR, pages 303 and 326. Also: in connection with Question No. 1, your attention is called to my opinion of July 23, 1965 to E. W. Hertz, State's Attorney of Hutchinson County, and the opinion reported in 1963-64 AGR wherein I ruled that the decisions to furnish transportation to high school students is left in the discretion of the school board and not the electors within such district. As the resident school district has not elected to furnish transportation or board and room allowances in lieu of transportation for the high school students, the answer to question number 1 must be "NO".

In answer to Question No. 2, I should advise that you have not stated sufficient facts for me to give you a precise answer to your question. I can, however, advise you as to the status of the law and from this you should be able to determine the proper answer.

A reading of the opinions cited under Question No. I will show that there is an obligation on the part of the school district to furnish transportation to elementary school children, or in lieu of transportation, a board and room allowance. However, such transportation, within the discretion of the school board, may be in the form of bus transportation. If bus transportation is furnished and available, and the bus stop is at or near the home of X, the school district's obligation is satisfied, and there can be no transportation payments made because the parents of X do not take advantage of such facilities. See my opinion to James I. Hare of July 19, 1966; my opinion of March 14, 1966 to Robert C. Bakewell, Jr., State's Attorney of Custer County; my opinion of July 23, 1965 to E. W. Hertz and the opinion reported in 1963-64 AGR 229.

I have also ruled that there is no obligation to pay transportation until the elementary school child is assigned to the school attended. 1963-64 AGR 371.

The factual situation may show that there has been no assignment of the pupil to any school, and no bus service furnished. In this situation, I believe the factual situation presented in regard to tuition is applicable, and you are directed to read my opinion of October 7, 1965 to State's Attorney Meidinger. In that opinion I held that in the absence of such bus transportation, assignment, and an official denial that the child should attend such school, that there was an implied assignment which would support the legal obligation to pay tuition. However, you will notice that in that opinion the factual situation showed that after school had commenced, and the child enrolled in the Leola school, that the child was assigned to the Wetonka School, and therefore there was no legal obligation to pay tuition to the Leola school because there was no assignment to that school.

With this background of the law covering transportation, or the payment of board and room allowance in lieu of transportation, you must discover the answer to the following questions:

First: Was the elementary school child assigned to the school he is now attending?

Second: If the student was not assigned to such school, was he assigned to another school?

Third: Does the school district furnish bus transportation to a designated school for such child?

Fourth: Has there been an implied assignment of such child to any school within or without the home district?

If the elementary school child has been assigned to a school other than the one he is attending, or if bus transportation is furnished to a designated school, there is no legal obligation to furnish transportation for his attendance in the independent school where the older children go to high school. On the other hand, if the child has been assigned to the school where he is attending, the obligation to pay transportation and tuition is fixed. If there has been no assignment of the child to the attended school or any other school, there may be an implied assignment to such school, and in such event transportation and tuition payments would be a legal obligation of the district. This statement must be tempered with the realization that the assignment of such student to any other school, even after school commenced, would immediately destroy the legal obligation to pay transportation and tuition.

I am certain that with the guidelines stated that you can, after an examination of the complete factual situation, determine the propriety of the transportation payment.

On the assumption that you ascertain that transportation payments are a legal obligation of the school district, you are cautioned that only one transportation payment can be made if all of the students attended the school in the same vicinity. You are also cautioned to consider the seven (7) cents a mile, two hundred fifty dollar limitation on transportation as provided in SDC 1960 supp. 15.3310.

In answer to Question No. 3, it is my opinion that if transportation is not a legal obligation of the school district, it would be improper for the governing board to authorize its payments on the theory that it had a moral obligation to make such payments. School funds are public funds, which should never be extended except in payment of legal obligations of the school district. By this I mean to say that if the elementary child is assigned to a school other than where he is attending, or if he is not taking advantage of bus service furnished to another school, no public funds should be expended in furnishing transportation because of an alleged moral obligation so to do. Likewise, unless the board determined to furnish transportation to all of its children attending high school, it should not furnish transportation to the high school children here involved upon any theory that there was a moral obligation to so expend funds.