March 27, 1986

Mr. Craig E. Smith 
Attorney at Law 
Post Office Box P 
Gettysburg, South Dakota 57442

OFFICIAL OPINION NO. 86-09

Tuition implication arising from a school district minor boundary change

Dear Mr. Smith:

On behalf of the Gettysburg School Board, you have requested my opinion concerning the following situation:

FACTS: 

In August of 1985, the Circuit Court approved a minor boundary change proposed under SDCL 13-6-84.1.  The Petition transferred property to the Gettysburg School District from the Hoven School District.  In September of 1985, the Potter County Commissioners met and pursuant to SDCL 13-6-77, approved the transfer of land to the Gettysburg School District effective January 1, 1985.  The Gettysburg School District will receive its first tax revenue after January 1, 1986.  The students are enrolled in the Gettysburg School District for the 1985-1986 school year.

Based on the foregoing facts, you have asked the following question:

QUESTION: 

Is the Gettysburg School District entitled to tuition for the students for the first half of the 1985-1986 school year?

SDCL 13-6-84 through 13-6-89, inclusive, contains the provisions relating to minor boundary changes between school districts.  The statutes do not address tuition in this situation since the tuition question is entirely dependent upon the residence of the children involved and arises only if a school board assigns children who are residents of its district to a different  district.

The Division of Education has for many years taken the position that the question of effective date of change of residence due to a minor boundary change and the effective date of transfer for taxing purposes are entirely separate questions.  Regarding the effective date for taxation purposes, SDCL 13-6-87 provides: 

Upon receipt of the resolution approving a boundary change or the petition for a boundary change from the school district affected, the board of county commissioners having jurisdiction over the district to which the territory is to be annexed shall at its next regular meeting issue its order setting forth the effective date of such boundary change.  Copies of the order shall be mailed or delivered to the superintendent of elementary and secondary education, the county auditor and each of the county commissioners of the county, or counties, involved, and the chairmen of the school boards of the respective school districts.

On the other hand, the question of residency is a question determined in the first instance by the school boards involved. According to the facts you provide, the circuit court approved the minor boundary change in August of 1985.  No doubt, at least one of the school boards approved this minor boundary change some time prior to that date.  Since the court approved the change in August of 1985, children residing on property transferred from the Hoven  District to the Gettysburg District prior to the commencement of the 1985-86 school year would not be involved in a tuition situation, since they were residents of the Gettysburg School District for attendance purposes throughout all of the 1985-86 school year.  In addition, since the Gettysburg School District began receiving all tax proceeds from this property effective January 1, 1985, it is difficult to understand its basis for requesting tuition.

Two additional reasons support this conclusion.  First, the property now transferred to the Gettysburg School District will continue paying taxes to the Gettysburg School District long after the children involved have terminated their schooling.  Second, SDCL 13-6-88 provides a method for alleviating any unfairness that might arise.  The statute provides: 

When a boundary change is made under the provisions of § 13-6-87, the board of county commissioners shall make an adjustment of assets and liabilities as may be required by law.

Obviously, the county commissioners could have adjusted the assets and liabilities including imposing a burden of paying tuition at the time the transfer was made.  Apparently, they chose not to do so and in my opinion the result is that the Gettysburg School District is now required to accept this situation.

My answer to your question is no.

Respectfully submitted,

Mark V. Meierhenry
Attorney General