August 30, 1979

Mr. Maurice Haugland 
Superintendent of Schools 
Yankton School District 63-3 
Yankton, South Dakota 57078

Official Opinion No. 79-30

Minimum age for kindergarten and first grade enrollment

Dear Mr. Haugland:

You have requested an official opinion interpreting the provisions of SDCL 13-28-2 as amended by the 1979 Legislature.  The statute provides: 

13-28-2. Minimum age for enrollment in kindergarten and first grade--Nursery School. No child who is less than five years old on the first day of September shall be enrolled in kindergarten during that school year, and said child shall first become eligible for enrollment in the first grade one year thereafter.  Any child in a kindergarten or pre-kindergarten program who was in compliance with the statutory eligibility dates in effect at the time of his enrollment may proceed in a continuous educational program without interruption.  Any child who transfers from another state may proceed in a continuous educational program without interruption. 

Any child under the age of five shall be eligible for admittance to a nursery school.

In conjunction with that statute you have asked the following specific questions:

QUESTIONS: 

1.  What constitutes a pre-kindergarten program? 

2.  Must the pre-kindergarten program qualify under the administrative rules of the Division of Elementary and Secondary Education in accordance with Chapter 24:03:09 dated 11/18/76? 

3.  May a day care center certified by the State Department of Social Services meet the requirements of a pre-kindergarten program? 

4.  Must the above defined pre-kindergarten program require continuous attendance throughout a legal school term of 175 days? 

5.  Define the “statutory eligibility dates in effect” as stated in the statute.

IN RE QUESTION NO. 1:

SDCL 13-3-47 provides for the State Board of Education to promulgate rules for the accreditation of all participating public and nonpublic nursery schools.  ARSD 24:03:09:01 defines a nursery school as a school organized and administered for groups of children during the year or years preceding kindergarten which provides educational experiences under the direction of a teacher or teachers.  The regulation further indicates the child must be at least two and one-half years of age to be eligible for initial enrollment in an accredited nursery school.

IN RE QUESTION NO. 2:

The answer to your second question is yes.  In view of the fact that the Division of Elementary and Secondary Education has defined what shall constitute a pre-kindergarten program, a child must have attended an accredited pre-kindergarten program in order to avail himself/herself of the provisions of SDCL 13-28-2.

IN RE QUESTION NO. 3:

State approval or accreditation of nursery schools is carried out on a voluntary basis at the request of each individual nursery school.  Nursery schools that submit a proper application for approval and comply with the standards as set forth in ARSD 24:03:09 will receive accreditation from the Division of Elementary and Secondary Education.  Accordingly, a general statement concerning “day care centers” is impossible and a local school board must determine in each particular instance if the pre-kindergarten program attended by a child, whether operated by the Department of Social Services or a private organization, meets the statutory and regulatory requirements.

IN RE QUESTION NO. 4:

ARSD 24:03:09:03 provides: 

A nursery school shall be in session not less than two and not more than four hours per day, at least two days per week.  The minimum term for a nursery school shall be at least six weeks.

The answer to your fourth question is no.

IN RE QUESTION NO. 5:

The statutory phrase “statutory eligibility dates in effect at the time of his enrollment” is transitionary language designed to accommodate the fact that over the past three years the Legislature has moved the date for determining a child's eligibility to attend school from November 1, in 1977, to October 1, 1978, and finally to September 1, in 1979.  As a result of this progression a child who attended nursery school during the 1978-79 school year and whose birthday fell before October 1 but after September 1 would without this statutory provision have had his/her educational progress interrupted for one year between attendance at nursery school and entry into kindergarten.  The Legislature intended that children, who at the time they entered nursery school under the then prevailing statute would have been eligible to enter kindergarten the next year, should not have their educational program interrupted because of the change in the statutory eligibility date.  When viewed in the context of the statutory changes over the past three years, the meaning of the phrase becomes apparent.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:TH:esp