February 17, 1982

Senator Doris Miner 
Senate Chambers 
State Capitol 
Pierre, South Dakota 57501

Official Opinion No. 82-11

Minimum number of days in session for schools

Dear Senator Miner:

You have requested my opinion concerning the number of days a school must actually be in session within the State of South Dakota.  You have asked the following question:

QUESTION: 

If a school has established a term of one hundred seventy-five days and then must close for a day of legal discontinuance (such as snow days) does the day of legal discontinuance count as part of the one hundred seventy-five days, or must the days of legal discontinuance be in addition to the one hundred seventy-five days?

SDCL 13-26-2 provides: 

The school board shall operate the schools for at least a nine month regular term in any one school year.  Such regular school term shall consist of school days actually in session for a minimum of one hundred seventy-five days provided, however, that the days in session plus days of legal discontinuance need not exceed one hundred ninety days.  A school board may operate a special term during the school months.  [Emphasis supplied.]

The sentence emphasized in the statute set out above initially establishes the minimum number of days school must actually be in session and then provides an exception to this minimum.  The statute has long been interpreted by the Division of Elementary and Secondary Education to require that school actually be in session, exclusive of days of legal discontinuance, for a minimum of one hundred seventy-five days during the school year.  When, however, the days  actually in session plus days of legal discontinuance reach a grand total of one hundred ninety days, school need not remain in session any longer.

This situation arises when a school board exercises the authority set out in SDCL 13-26-3 which provides in pertinent part: 

School shall be legally discontinued . . . the days when the school board closes the school because of inclement weather or contagious disease and any day or days of an emergency situation determined by the school board.

The apparent purpose and result of the long-standing interpretation of these statutes is to provide that when school has been closed by the board because of inclement weather or other emergency, actual days in session and days of legal discontinuance need not exceed one hundred ninety days.  This result is not dependent upon the length of the calendar adopted by a local school board; however, when a calendar of less than one hundred ninety days has been adopted by a local board and inclement weather or other emergency necessitates providing for days of legal discontinuance, the district's calendar, as filed with the Division of Elementary and Secondary Education, should be amended to reflect the actual situation occurring in the district.  See also Official Opinion No. 77-26.

Respectfully submitted,

Mark V. Meierhenry
Attorney General