STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 6, 1968

John J. Simpson
State's Attorney, Tripp County
Winner, South Dakota 57580

OFFICIAL OPINION NO. 68-46

Assignment of elementary and secondary students

Dear Mr. Simpson:

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

"At the beginning of the school year, Parents 'A' lived just short of ten miles from the nearest school in their district and bus service and dormitory facilities were not provided. A request for assignment of Parents' 'A' child was made to the school board to assign said child to another district and this request was turned down.

"Subsequent to that time assume that Parents 'A' moved legitimately to a point of more than ten miles to the nearest school in their district. Another request was then made to the school board for assignment to another district because again bus service or dormitories were not provided.

"The school board has refused to assign said child because they feel that the move was made for school purposes only, however, the move made by Parents 'A' was a permanent move."

You have asked the following question:

"Under the above circumstances, is the school board obligated to assign the children of Parents 'A' to another school district. Please answer the question with reference to both elementary and secondary students."

SDC 1960 Supp. 15.3302, as last amended by Chapter 69, Session Laws of 1963, sets forth the statutory authority to assign secondary students who live in an independent school district and reads in part as follows:

" ... If a student lives more than ten miles from the nearest high school being operated in his own district and bus service or dormitories are not provided said student, the school board shall assign and pay the tuition for the student to any public high school or any state institution offering high school subjects in this state or any other state which the student's parent or guardian requests; provided that this provision shall not apply in counties operating a county high school created prior to this act. . . ." (Emphasis supplied.)

It is my opinion that when the above statute is applicable, the word shall makes it mandatory upon the independent school board to make an assignment and pay the tuition when requested by the parent or guardian of a secondary student.

SDC 1960 Supp. 15.3301, as last amended by Chapter 79, Session Laws of 1961, sets forth the statutory authority to assign elementary students and I find no wording in this statute that makes it mandatory for a school board to assign an elementary student when said school board is operating a school within the district. See 1965-66 AGR 201, 279 and 288.

Respectfully submitted,

Frank L. Farrar
Attorney General