STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 3, 1966

Lyle Cheever
State’s Attorney, Brookings County
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 67-68 pg. 55

Schools and School Districts. Transportation for Kindergarten Students.

You have requested an opinion based upon the following factual situation:

'The Brookings Independent School District No. 122 of Brookings County, South Dakota, has established and operated a kindergarten in its public school system for the past several years pursuant to the provisions of SDC 1960 Supp. 15.3012. All children residing in the district are eligible for attendance at kindergarten one year before said children are eligible to be enrolled in the elementary school, SDC 1960 Supp. 15.3002.

"However, such enrollment in kindergarten is not mandatory and there are families residing in the district who do not send their children to kindergarten. The question has now been raised as  to whether a kindergarten student who attends a kindergarten school situated more than three miles from his residence is entitled to transportation reimbursement pursuant to the provisions of SDC 1960 Supp. 15.3009 (1). This matter seems to hinge upon whether or not a kindergarten student is to be classified as an elementary student under the laws of this State.

"The Independent School District school buses do pick up kindergarten students on the morning bus schedules but do not return kindergarten students home at the end of the morning session."

Your specific inquiry is whether the term "elementary student" includes a kindergarten student as such term is used in SDC 1960 Supp. 15.3002 and 15.3309.

SDC 1960 Supp. 15.3002 reads in part as follows:

“…A child shall become eligible for admittance to a kindergarten one year before said child is eligible to be enrolled in the elementary school. . .”

SDC 1960 Supp. 15.3012 reads as follows:

"The school board of any school district may maintain as a part of the public school adult education classes, summer schools, kindergartens, and nurseries under the regulations and standards as established by the State Board of Education. The State Superintendent of Public Instruction shall have controlling and directing authority over all such programs."

SDC 1960 Supp. 15.3304 provides in part as follows:

"All nursery, kindergarten, elementary, and secondary students not entitled to the free school privileges of the district wherein they are enrolled shall be charged the legal rate of tuition as hereinafter provided. . .”

SDC 1960 Supp. 15.3305 as last amended by Chapter 54, Session Laws of 1965, reads in part as follows:

"The daily legal rate for tuition to be charged by the school board for a nonresident pupil enrolled in an elementary school program, including kindergarten and nursery schools, shall be eighty-five (85) per cent of the adjusted state daily per pupil cost for the preceding school fiscal year determined as provided herein.”

I am unable to find any specific statute that specifically defines an "elementary student," however, you will note that kindergarten students are to be charged the same tuition rate as other students enrolled in an elementary school program.

SDC 1960 Supp. 15.3001 reads in part as follows:

"The privileges of the public schools of any district shall be free  to all persons with school residence within the district until they complete the secondary school program or until they reach the age of twenty-one....”

It is my opinion that in general the terms "elementary school" and "elementary student" refers to grades one through eight; however, since school districts are authorized to operate kindergartens and when they do so operate, they are required by statute to charge nonresident students the same tuition rate as elementary students. It is therefore my opinion, when a school district does provide kindergarten facilities, that the students attending such facilities should be considered as elementary students and be eligible to the same transportation privileges as elementary students under SDC 1960 Supp. 15.3309 and 15.3310.

In support of this position, although not specifically in point, see subsection (4) of SDC 1960 Supp. 15.2246 as last amended by Chapter 77, Session Laws of 1963, which is the state aid statute and reads in part as follows:

"(4) The classroom unit entitlement of a school district which operates an educational program for lower grade pupils, which includes grades kindergarten through eight, shall be determined as provided in table one in this subsection. The classroom unit entitlement of a school district which operates an educational program for upper grade pupils, which shall include grades nine through twelve, shall be determined as provided in table two of this subsection. . . "

SDC 1960 Supp. 15.2002 as last amended by Chapter 42, Session Laws of 1965 reads in part as follows:

“...An independent school district is defined as that district which operates a twelve year school program (with or without  a kindergarten) or an accredited high school…”