Eric John Nies, 091420 SDAGO, AGO 20-01

Docket NºAGO 20-01
Case DateSeptember 14, 2020
CourtSouth Dakota
Eric John Nies
AGO 20-01
Official Opinion No. 20-01
South Dakota Attorney General Opinion
Attorney Office of The South Dakota General
September 14, 2020
         Re: Open Enrollment of Special Education Students          Dear Mr. Nies,          In your capacity as counsel for the Meade County School District you have requested an official opinion from the Attorney General’s Office on the following question:
Can a nonresident school district deny an application for open enrollment if a member of the applicant’s family is already enrolled in the district, but the district cannot provide an appropriate special education instructional program or appropriate special education related services?
Pursuant to SDCL 13-28-44, a nonresident school district may deny an open enrollment application due to the nonresident district’s inability to provide a student seeking to open enroll an appropriate program of special education instruction or related services.
         FACTS:          The above question has arisen between the Meade County School District and a neighboring district and involves the potential open enrollment of a student requiring appropriate special education instruction or related services. Another member of the student’s household has already open enrolled in the Meade County School District.          IN RE QUESTION:          SDCL 13-28-40 establishes an open enrollment option for students attending kindergarten through twelfth grade in South Dakota. Subject to the provisions of SDCL 13-28-40 through 13-28-47, any K-12 student has the option to attend any public school in any school district that serves the student’s grade level. SDCL 13-28-40. An application for open enrollment must be submitted for any student wishing to enroll in a nonresident school district or wishing to attend a school other than the one to which the student has been assigned.          SDCL 13-28-43. A school district must grant an open enrollment application unless doing so “would result in an inability to provide a quality educational program based on criteria...

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