September 30, 1988
Dr. Henry G. Kosters
State Superintendent of Education
700 Governors Drive
Kneip Building
Pierre, South Dakota 57501
Official Opinion No. 88-46
Contracting school districts
Dear Dr. Kosters:
You have requested my official opinion on the following matters:
FACTS:
School district "A", with boundaries adjoining another school district, entered into a contract with school district "B" pursuant to SDCL 13-15-1.3. In 1984, when the contract was entered into, "A" school district had about 30 secondary students who attended high school in "B" school district. The combined enrollment in "B" was about 200 secondary students. "A" operates an elementary school for its elementary students.
You have also proposed a somewhat different scenario:
School district "X", with boundaries adjoining another state, entered into a contract with school district "Y" in the other state under the provisions of SDCL 13-15-11. In 1971, when the contract was entered into, "X" school district had about 60 secondary students who attended high school in "Y" school district. The combined enrollment in "Y" was about 200 secondary students. In 1988 "X" had about 25 secondary students enrolled in "Y" school district and the combined enrollment was about 125. While "X" operates an elementary school for its elementary students. SDCL 13-15-4 provides that school district "X" is considered as operating the school regardless of whether the school is located within the boundary of such school district.
Based upon the foregoing factual situations, you asked the following:
QUESTIONS:
1. In regard to the first scenario, is it the average daily membership of secondary students residing in school district "A" or the combined average daily membership of secondary students enrolled in school districts "A" and "B" that should be considered to determine eligibility for general support foundation funds under SDCL 13-13-16?
2. In regards to the second scenario, is it the average daily membership of secondary students residing in school district "X" or the combined daily membership of secondary students enrolled in school districts "X" and "Y" that should be applied to determine eligibility for general support foundation funds under SDCL 13-13-16.
BACKGROUND
SDCL 13-15-11 provides:
The school board of any school district with boundaries adjoining another state may enter into an agreement or contract with the officers of a school district in another state when the provisions of such agreement or contract have been approved by the superintendent of elementary and secondary education to provide for the education of the children who reside within such school district and to provide for the erection, operation and maintenance of school facilities for both school districts upon such terms and conditions as may be mutually agreed upon between such school districts subject to the limitations as provided by law. Such contract or agreement shall not be subject to the provisions of the tuition law.
The statute set out above has been in effect in this State in essentially its present form since 1957. The statute was enacted just as school district reorganization was beginning in this State. Throughout the years a great deal of litigation and many statutory changes have been enacted in implementing school district reorganization. There is only one policy which may be gleaned from these many and varied enactments and that is that it appears to be the Legislature's intention that small, inefficient, districts throughout the State be combined with larger districts in order to equalize both the educational opportunities for the students within the districts and the tax burden upon the patrons in school districts across the State. This policy is consistent with the duty imposed upon the Legislature by the people and the Constitution. See South Dakota Constitution Article VIII, Section 1. In many respects, this policy has been very successful since records in the Division of Education indicate that in 1960 there were in excess of 3,600 school districts in the State and as of this writing, there are but 192 districts remaining.
Although the provisions of the foregoing statute have not changed, other statutes relating to the same subject and the treatment of school districts operating under these contracts have undergone substantial modification.
In 1981 SDCL 13-15-1.3 was enacted. That statute provides:
The school board of a school district bordering on one or more districts may enter into an agreement or contract with the officers of the adjacent school district or districts, if the provisions of such agreement or contract have been approved by the superintendent of elementary and secondary education, to provide for the education of the children who reside within the school districts and to provide for the erection, operation and maintenance of school facilities for the school districts upon terms and conditions as may be mutually agreed upon between the school districts, subject to the limitations as provided by law. Such contract or agreement is subject to the provisions of the tuition law.
Comparison of the two statutes set out above reveals that the enactment of the latter statute extended to school districts, not located on the State's borders, contracting authority previously limited to the border districts. The sole difference between the two statutes is whether the contract or agreement is subject to the provisions of the tuition law.
In 1981, the same legislative bill enacting SDCL 13-15-1.3 also amended SDCL 13-15-14. That statute provides:
School districts entering into contractual agreements specified in § 13-15-11 or § 13-15-1.3 are considered to be operating a school whether or not the school is located within the boundary of the district. In any event, each school district, except those which have entered into an approved contract under the provisions of § 13-15-11, shall operate at least an instructional program for grades one through six within the boundaries of the district. After July 1, 1983, any school district with fewer than fifty students in high school entering into an agreement pursuant to § 13-15-1.3 shall, for the first year of operation under the agreement, receive, in addition to any other high school state aid to education payments to which the district is entitled, an amount equal to the secondary tuition rate as provided in § 13-28-26 per average daily membership child provided educational services under the agreement and for the second and third year under the agreement the district is entitled to one-half the secondary tuition rate.
Note that this statute allows border districts to not operate elementary schools, a power not available to non-border districts.
Finally, in reference to the present question, legislative activity on SDCL 13-13-16 must be considered. The statute presently provides:
To be eligible to receive foundation program funds, a school district may not have operated a secondary school during the second preceding school fiscal year with an average daily membership of less than thirty-five pupils enrolled in grades nine through twelve in the school; unless the secondary school was located more than twenty miles from any other public secondary school in operation. The measure of distance between schools shall be calculated by miles traveled on highway systems as defined in subdivision (1), (2) or (4) of § 31-1-5. However, if a school district is operating an elementary program and is not eligible for state foundation program support for secondary schools, that ineligibility for state foundation program support for secondary schools does not bar the district from receiving sixty- five percent of its total entitlement to foundation program support funds for its elementary grades if other requirements are met. In determining average daily membership only pupils enrolled in grades nine through twelve residing within the district or for whom tuition is collected may be counted. Foreign exchange students and students assigned pursuant to § 13-28-10 may not be counted. This section applies to those districts contracting for educational services under the provisions of § 13-15-1.3 and § § 13-l5-11 to 13-15-14, inclusive.
In 1983, language regarding contracting districts was added to the statute. In 1984 the following sentence was amended onto the statute "[t]he thirty-five pupil average daily membership requirement of this section does not apply to districts already contracting under § 13-15-1.3 or § 13-15-11 as of July 1, 1984, nor to districts that have a high school average daily membership of thirty-five or more students at the time of their initial contract." In 1987 the foregoing sentence was deleted.
These legislative enactments have made a substantial difference in the way contracting districts are treated under what is known generally as the "State Aid to Education Formula." In fact, in 1978 my predecessor opined in a memorandum opinion to the then state superintendent that the combined enrollment of the two districts was to be considered in determining whether the thirty-five student limitation upon state aid to education would be applied. That opinion was followed by all concerned until the recent statutory amendments.
IN RE QUESTIONS 1 AND 2:
Given the foregoing discussion, I am compelled to conclude that the Legislature has clearly and directly applied the thirty-five student disqualification to all contracting districts whether the contracts are with other South Dakota districts or neighboring states' districts. To the extent Memorandum Opinion 78-27 holds to the contrary, it is hereby overruled.
It seems to be unreasonable to conclude that when the Legislature directed its attention to small high schools that will not receive state aid to education, it would look at the combined enrollment of two districts where the school district has chosen to contract for its high school services rather than undertake the measures provided for reorganization of school districts in SDCL ch. 13-6. My conclusion that the Legislature intends to consider only the children who receive an education under the contract is reinforced by reference to SDCL 13‑13‑21.1.
Accordingly, the answer to question 1 is that the State Superintendent should look only to the number of students with school residence in district "A" and any students for whom District "A" receives tuition in determining entitlement to state aid to education under SDCL 13-13-16. Based upon the same reasoning, in the out-of-state contracting situation, the State Superintendent should look only to the resident students in district "X" and any students for whom District "X" receives tuition in determining the state aid to education available for that district.
Respectfully submitted,
Roger A. Tellinghuisen
Attorney General
