STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 21, 1973

Senator Harold Schreier
John Shaeffer
States Attorney, Moody County
Flandreau, South Dakota 57028

OFFICIAL OPINION NO. 73-20

Transportation costs for exceptional children

Dear Senator Schreier and Mr. Shaeffer:

You requested an opinion on the following specific question:

Is a school district responsible for transportation costs of an exceptional child attending a state-owned institution?

SDCL 13-37-13 provides as follows:

Neither the superintendent, nor any school district or county shall expend any public funds under the provisions Of this chapter for the education of exceptional children to any state-owned institution, either within or outside of South Dakota except for services not provided within the state of South Dakota.

In 1968, my predecessor issued an opinion based on the foregoing statute. The opinion held that there is no statutory authority to pay transportation for students who are enrolled and are attending the State School for the Deaf. 1967-68 AGR 449-50. I disagree with, and overrule, that opinion insofar as it applies to expenses for transportation paid to the student. I base this conclusion on the provision of 13-37-13, which says that funds are not to be expended for the "education of exceptional children." The funds are not being expended for education, per se; they are being expended for transportation. In addition, Section 13 prohibits expenditure of funds for education of exceptional children "to any state-owned institution." In the case of transportation of an exceptional child, the funds are paid to the child, not to the state-owned institution.

Therefore, Section 13 is inapplicable to transportation for exceptional children.

Subsequent to the 1968 Attorney General's opinion discussed in the foregoing paragraph, he Legislature enacted SDCL 13-37-8.9, which provides:

Where appropriate transportation is not provided by the school dictrict, any exceptional child, when legally assigned, shall be eligible for necessary transportation at seven cents per mile not to exceed six hundred dollars per fiscal year. The district wherein an exceptional child has school residence shall pay the transportation expenses from the school district's special education fund.

This section was obviously intended to supercede the 1968 Attorney General’s opinion which disallowed expenses for transportation.

SDCL 13-37-6 excludes exceptional children who are receiving state institutional care from transportation benefits "during the time that they are actually in such institutions." Since the transportation is to and from the institution, this section is inapplicable.

The answer to your specific question is YES. A school district: is responsible for transportation costs of an exceptional child attending a state-owned institution.

Respectfully submitted,

Kermit A. Sande
Attorney General