July 18, 1980

Mr. John J. Biegler 
Superintendent of Schools 
Polo School District 29-2 
Orient, South Dakota 57467

Official Opinion No. 80-43

Tuition

Dear Superintendent Biegler:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

Family X, residents of Polo School District, live nine miles from the Polo High School building.  For the past eight years the Polo School District has paid tuition for the X Family's elementary students to attend a public elementary school.  (The Polo School District does not operate a public elementary school.)  In August of 1980, two of the X Family's children will be entering the ninth grade and one of the children will be entering the eighth grade. The Polo Board of Education intends to pay the tuition and mileage for the eighth grade student to attend a neighboring school district's elementary school.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Is the Polo Board of Education obligated to continue to pay the tuition for the ninth grade students for the 1980-81 school year? 

2.  If requested to do so by Family X, may the Polo Board of Education legally pay the tuition for the ninth grade students for the 1980-81 school year?

SDCL 13-28-22 and 23 provide: 

All nursery, kindergarten, elementary, and secondary students not entitled to the free school privileges of the district wherein they are enrolled shall be charged the legal rate of tuition as hereinafter provided.  If the said student has been assigned by the school board of the district wherein the student has school residence or has been assigned as provided by statute, that school board shall pay the legal rate of tuition.

IN RE QUESTION NO. 1:

Since SDCL 13-28-19 grants the authority to assign the secondary students to attend some school, but does not impose a duty to make such assignments, it is my opinion that the Polo School Board is not obligated to continue paying tuition for the ninth grade students unless the Board assigns the students to attend a public school outside the Polo District.  Therefore, my answer to question No. 1 is 'No.'

IN RE QUESTION NO. 2:

Since SDCL 13-28-23 provides that the students defined in 13-28-22 to include secondary students assigned by the school board to attend school in some other district shall have tuition paid by the board, the authority to make  such assignments arises by implication from the statute.  Since the obligation of tuition flows from the power of assignment, the above statutes, taken together, create a legal obligation for payment of tuition upon the assigning board.  My answer to question No. 2 is therefore 'Yes.'

Respectfully submitted,

Mark V. Meierhenry
Attorney General