STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 15, 1974

George S. Mickelson
State's Attorney
Brooking County
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 74-30

No obligation of a school district to pay tuition without actual, statutory, or implied assignment

Dear Mr. Mickelson:

You have submitted the following factual situation:

During the school year 1973-74, X, a resident of the Brookings Independent School District #122, was a resident of McCrossan's Boys' ranch in Minnehaha County and attended the public high school in the Baltic Independent School District #115. The parents of X reside in the city of Brookings, South Dakota, and the father is employed at South Dakota State University. X attended the Brookings High School during his first two years of high school education, and during his junior year became a discipline problem both in the high school and in his home. The school district attorney advised the Brookings Independent School District officials that a petition ought to be filed in the District County Court of Brookings County to have X declared either a dependent or a delinquent child and that the Court could then commit the boy to either the State Training School or to a private institution, such as McCrossan's Boys' ranch. The parents were reluctant to submit the matter to the District County Court and objected to the possibility of any order to commitment and personally arranged for the boy to be transferred to McCrossan's Boys' ranch where X completed his senior year.

The Baltic Independent District has now billed the Brookings Independent School District for tuition of X from August 27, 1973, through May 24, 1974, in the sum of $952.32.

The boy was never assigned to the Baltic School District pursuant to Section 13-37-7 SDCL as an exceptional child entitled to special education nor was he ever assigned to the Baltic District by the Brookings Independent District School Board.

You have requested an opinion on the following questions:

As to the liability of payment of tuition to the Baltic School District for the school year 1973-74 for the education of X-does that liability rest with the parents of X or with the Brookings Independent School District?

The Attorney General has in former opinions designated assignments as "actual, " "statutory" or "implied." An actual assignment is one made by the school district pursuant to the authority contained in such statutes as SDCL 13-28-15 and SDCL 13-28-19. A statutory assignment is, in effect under such statutes as SDCL 13-28-16, SDCL 13-28-17, SDCL 13-28-11.1 and SDCL 13-27-7. An implied assignment may occur when an assignment is requested and the school district acquiesces in the assignment by failing to deny the request or make a specific assignment.

In the factual situation you set forth, I find nothing that indicates an actual, statutory, or implied assignment has been accomplished. In answer to your specific question, it is my opinion that the liability for payment of the tuition of X rests with the parents of X. See SDCL 13-28-24.

X may be eligible for tuition payments under the provisions of SDCL 13-28-11.1.

Respectfully submitted,

Kermit A. Sande
Attorney General

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