Can a Mississippi school district run a tuition-based 3K (three-year-old) program and a tuition-based after-school program?

Plain-English summary

The Cleveland School District wanted to run two new programs in its magnet schools: a tuition-based 3K (three-year-old) program and a tuition-based after-school program for kids from 3K through 6th grade. The district's attorney asked seven detailed questions about authority, funding, and cost coverage. The AG provided guidance on the legal framework but declined to answer most of the specific cost-and-funding questions because they were too fact-specific for an official opinion.

The big legal points:

1. Yes, the District can run a tuition-based 3K program under Section 37-7-301(zz). That subsection authorizes school boards to "fund and operate voluntary early childhood education programs" for children less than five years old. The statute says boards can use "any source of revenue" for those programs and does not prohibit charging tuition. The program cannot conflict with the Early Learning Collaborative Act of 2013 (ELCA), which is a separate prekindergarten program for children turning four by September 1.

2. Other revenue sources to cover shortfalls: The AG declined to enumerate them. The statute is open-ended ("any source of revenue"). The AG referred the District to the Mississippi Department of Education (MDE) and the State Auditor's Technical Assistance Division for specifics.

3. What "costs" the District can include: Also too fact-specific. The statute says boards may "fund and operate" the program. Whether a particular expenditure is to "operate" the program is a fact question.

4. Yes, the District can run a tuition-based after-school program under Section 37-7-339, which authorizes extended-day and school-year programs for K-12 students. Section 37-7-339(1) lets boards "expend any funds for these purposes which are available from sources other than the adequate education program" and charge "a reasonable fee." A 2008 AG opinion (Keith) cautioned that "reasonable fees" cannot exceed actual program costs. Combining Section 37-7-339 (K-6) with Section 37-7-301(zz) (under-five) lets the after-school program span 3K through 6th grade.

5. Other revenue sources for the after-school program: Funds from sources other than the Mississippi Adequate Education Program (MAEP) are available per Section 37-7-339(2). Specifics: ask MDE and State Auditor.

6. Cost categories for after-school: Same answer; fact-specific.

7. CARES Act funds: Outside the AG's scope (federal law). Ask MDE.

The opinion is short on specifics but useful as authorization. The District has the legal cover to operate both programs on a tuition basis. The execution details (specific budget, specific revenue mix, specific cost coverage) are administrative questions for MDE and State Auditor, not legal questions for the AG.

What this means for you

For Mississippi school district superintendents and boards

You have authority for two distinct types of fee-based programs:

3K program (Section 37-7-301(zz)):
- For children less than five years old
- Tuition allowed
- Other revenue sources allowed
- Cannot conflict with ELCA (don't compete for the same kids)
- Operating decisions are board discretion

Extended-day or after-school program (Section 37-7-339):
- For K-12 students
- "Reasonable fees" allowed (cannot exceed actual program costs per the Keith opinion)
- Funded from non-MAEP sources

Combine both, and you can serve a 3K-through-6th-grade after-school program. Set tuition that recovers costs but does not generate excess revenue.

Document the program design, the cost projections, and the revenue plan on the board's minutes. Get MDE input on any program touching state-funded streams. Get State Auditor input on the financial controls and accounting.

For Mississippi school district business managers and CFOs

Build the program budget conservatively:
- Costs: salaries and benefits, facility costs (light, water, share of rent), instructional materials, equipment, transportation if applicable, administrative overhead.
- Revenue: tuition, donations, foundation grants, federal grants where eligible, fundraising, other non-MAEP sources.
- Reconcile annually. If tuition is more than actual cost (per the Keith caution), reduce tuition or refund.

Keep the after-school accounting separate from the regular instructional budget. The MAEP-no-spend rule means you cannot use base instructional funding for these programs.

For Mississippi parents seeking access

If your school district has a tuition-based 3K or after-school program, you generally pay tuition. Districts may use lottery selection (the Cleveland plan) for limited capacity. Some districts may offer partial subsidies or scholarship for low-income families, depending on the funding mix.

If you want a free prekindergarten program for a child turning four by September 1, look for ELCA-funded programs in your area. ELCA is a separate, partially state-funded program with different eligibility.

For Mississippi early childhood educators

The 3K space is a growing area of school district programming. The legal framework is set: districts can operate tuition-based programs for under-five children. Educators can:
- Help design curricula appropriate for three-year-olds
- Apply for teaching positions in district 3K programs
- Partner with districts on supplemental programming

The professional standards and certifications are set by the State Department of Education.

For Mississippi legislators and policy advocates

The AG opinion confirms authority but does not address policy concerns about equity (tuition limits access by family income), program quality (no statutory minimum standards for a Section 37-7-301(zz) 3K program), or funding stability (districts cannot use MAEP money for after-school under Section 37-7-339). If you care about expanding access to high-quality early childhood education, this opinion documents both the available authority and the gaps.

For ELCA collaboratives

Section 37-7-301(zz) explicitly says 3K programs cannot conflict with the ELCA. Districts running both an ELCA-funded prekindergarten and a separate 3K program need to:
- Keep enrollments distinct (3K serves younger children; ELCA serves four-year-olds)
- Avoid overlap in funding streams
- Ensure no parent is paying twice

Common questions

Q: What is the difference between 3K and ELCA?
A: ELCA (Early Learning Collaborative Act of 2013, Section 37-21-51) is a state-funded prekindergarten program for children turning four by September 1 of the school year. 3K, as the District uses the term, is a program for children turning three. ELCA serves the year-before-kindergarten cohort; 3K serves the year-before-that cohort.

Q: Can the school district turn 3K into a full preschool offering for any child?
A: The Section 37-7-301(zz) authority covers children less than five. So yes, a district can operate 3K and 4K (the year before kindergarten) as long as the 4K program does not conflict with ELCA.

Q: How is "reasonable fee" defined for the after-school program?
A: The Keith (2008) opinion said reasonable fees cannot exceed the actual cost of the program. So if it costs $50 per child per week to run the program, the fee cannot be $75. The fee should be tied to documented costs.

Q: What about scholarships or sliding-scale tuition?
A: The opinion does not address means-tested tuition. The plain language of Section 37-7-301(zz) ("any source of revenue") suggests broad flexibility. Districts can probably offer scholarships funded by donations, partnerships with foundations, or federal funding sources. Check with MDE on any specific scholarship structure.

Q: Can the District use facility space rent-free for the program?
A: That is a fact question the AG declined to answer. The statute says the board can "fund and operate" the program. Whether facility cost is part of the fund-and-operate authority depends on the specific accounting and the program's relationship to the regular school day.

Q: What happens if the program is unprofitable?
A: The board has discretion. It can subsidize the program from non-MAEP sources, reduce program scope, or terminate the program. The statutes do not require the program to break even.

Q: Can the District lock in tuition contracts for multi-year terms?
A: The opinion does not address this. Standard contract law applies; multi-year tuition contracts are common in private school settings and could be structured here.

Q: What about CARES Act and other federal pandemic funds?
A: The AG could not opine on federal law. MDE has issued guidance on CARES Act use. School districts considering federal pandemic funding for these programs should consult MDE guidance and the funding source's own restrictions.

Q: Can the District deny enrollment based on parent ability to pay?
A: That is a complex fact and policy question. The opinion does not address it. Equal-protection and equal-access concerns may apply if the program is treated as integral to the district's offerings. Consult a school law attorney.

Q: How does this interact with Mississippi's free public school constitutional mandate?
A: The AG noted that Article VIII, Section 201 of the Mississippi Constitution requires "free public schools" and Section 37-13-1 maintains "a uniform system of free public schools consisting of grades one through twelve." 3K and after-school are outside that mandate (3K is below grade one, after-school is supplementary). Tuition for these programs does not violate the free-public-school requirement.

Background and statutory framework

Mississippi's framework for school district programming is layered:

Constitutional baseline (Art. VIII, § 201): Free public schools, by general law.

Statutory baseline (Section 37-13-1): Uniform system of free public schools, grades 1-12.

Beyond the baseline:
- Section 37-7-301 enumerates school boards' powers and duties. Two subsections matter here:
- (ss) authorizes voluntary prekindergarten through ELCA partnerships
- (zz) authorizes other early childhood programs for children under five, "to use any source of revenue," subject to no conflict with ELCA
- Section 37-7-339 authorizes extended-day and school-year programs for K-12, with "reasonable fees"
- Section 37-21-51 et seq. is the ELCA itself, with state matching funds and partnership requirements

The 2013 ELCA was Mississippi's first significant state-funded prekindergarten investment. It uses a collaborative model where school districts partner with Head Start, private providers, and others. It is partially state-funded but requires local match. Section 37-21-51(3)(h)(iv) lists "parent tuition" as a source of local matching funds.

The general 3K authority in Section 37-7-301(zz) was added later. It is structured to coexist with ELCA: 3K cannot conflict, but where ELCA does not reach (younger children, non-collaborative settings), districts have flexibility.

The Keith (2008) opinion is the operating limit on after-school fees. Fees cannot exceed actual program cost. The fee statute, Section 37-7-339, contemplates fee-based programs but does not authorize revenue-generating programs (which would be inconsistent with the public-school mission).

The AG's reluctance to specify cost categories or revenue sources is consistent with Section 7-5-25, which limits AG opinions to questions of state law and not factual or administrative questions. Districts seeking specific guidance on how to structure budget categories or what revenue sources to use are appropriately routed to MDE (which has expertise in education funding compliance) and the State Auditor's Technical Assistance Division (which assists with auditing standards and financial controls).

Citations and references

Constitutional provision:
- Miss. Const. art. VIII, § 201, free public schools

Statutes:
- Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law
- Miss. Code Ann. § 37-7-301, school board powers and duties
- Miss. Code Ann. § 37-7-301(ss), ELCA prekindergarten authority
- Miss. Code Ann. § 37-7-301(zz), early childhood program authority
- Miss. Code Ann. § 37-7-339, extended-day program authority
- Miss. Code Ann. § 37-7-339(1), reasonable fee authority
- Miss. Code Ann. § 37-7-339(2), non-MAEP funding
- Miss. Code Ann. § 37-13-1, uniform system of free public schools
- Miss. Code Ann. § 37-21-51, Early Learning Collaborative Act of 2013
- Miss. Code Ann. § 37-21-51(1)(a), prekindergarten child definition
- Miss. Code Ann. § 37-21-51(3)(h)(iv), parent tuition as ELCA local match

Prior AG opinions:
- MS AG Op., Keith (July 3, 2008), reasonable after-school fees cannot exceed actual cost
- MS AG Op., Barrett (Aug. 29, 1984), AG declines overly broad questions
- MS AG Op., McCaughn (Aug. 5, 2016), same

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/08/J.Lee-August-6-2021-Tuition-based-3K-and-After-School-Program.pdf

Original opinion text

August 6, 2021

Jamie F. Lee, Esq.
Attorney for Cleveland School District
Post Office Box 1209
Cleveland, Mississippi 38732

Re: Tuition-based 3K and After-School Program

Dear Ms. Lee:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, the Cleveland School District (the "District") is interested in housing a tuition-based 3K program within one or more of its magnet elementary schools. Students would be chosen by lottery, but the program would be generally available to any of the District's three-year-old children. Additionally, the District would ensure that the children would not be of age to qualify for the Early Learning Collaborative. You also ask about the feasibility of an after-school program for students 3K-6th grade, which also would be tuition-based and staffed by certified teachers. In a subsequent telephone conversation, you stated that the District currently operates a 3K program at one of its magnet elementary schools, but tuition payments have been suspended pending the outcome of this opinion.

Questions Presented

1. May the District fund and operate an early childhood tuition-based program for three-year-olds pursuant to Mississippi Code Annotated Section 37-7-301(zz) as long as the program does not conflict with the Early Learning Collaborative Act of 2013?

2. The early childhood program would be tuition based; however, if tuition does not cover the entire cost of the program, what other funds might the District utilize to make up for any shortfall?

3. Specifically, how would the Attorney General define "any source of revenue" under the above referenced statute?

4. When the District is considering the cost of the 3K program, would those costs necessarily include salaries and benefits of teachers, a rental fee for the class, lights, water, etc.?

5. May the District charge tuition for an after-school program that would be open to any child in the District, Pre-K through 6th grades?

6. If tuition is insufficient to cover all after-school program costs, what other revenue/funds may the District use to operate the program?

7. Will the District's costs to cover the after-school program necessarily include salaries and benefits of teachers, and a rental for the class, lights, water, etc.?

Brief Response

1. Yes. The language of Section 37-7-301(zz) is clear that the school board of a district is authorized to fund and operate an early childhood education program. There does not appear to be a prohibition on charging tuition for such a program.

2. Your second question is too broad to address by official opinion. However, for your guidance, Section 37-7-301(zz) authorizes the school board "to fund and operate voluntary early childhood education programs … and to use any source of revenue for such early childhood education programs." The statute is silent as to the meaning of "any source of revenue." We recommend you contact the Mississippi Department of Education ("MDE") and/or Technical Assistance Division of the Office of the State Auditor for guidance on this question.

3. See Response to Question 2.

4. The statute does not enumerate specific costs of early childhood programs but does authorize the board "to fund and operate" said programs. Miss. Code Ann. § 37-7-301(zz) (emphasis added). Whether any specific expenditure is incurred to "operate" the early childhood education program is a question of fact that this office cannot address.

5. Yes. Section 37-7-339 allows districts to charge a reasonable fee for after-school programs, and there is no prohibition against including a tuition-based after-school program for prekindergarten students.

6. Your sixth question is too broad to address by official opinion. However, for your guidance, the applicable statute states that the board may expend funds available from sources other than the adequate education program. Miss. Code Ann. § 37-7-339(2). For further guidance, we recommend you contact the MDE and/or the Technical Assistance Division of the Office of the State Auditor.

7. The plain language of Section 37-7-301(zz) provides that the board is authorized "to fund and operate" the program. Miss. Code Ann. § 37-7-301(zz) (emphasis added). Whether any specific expenditure is incurred to "operate" the after-school program is a question of fact that this office cannot address.

Applicable Law and Discussion

Pursuant to the authority granted to this office in Section 7-5-25, official opinions of the Attorney General are limited to questions of law for future guidance of those officials entitled to receive them and can neither ratify nor invalidate past action. Therefore, to the extent your request requires this office to make determinations that exceed the limitations established in Section 7-5-25, we decline to respond with an official opinion but provide the following for future guidance. Your request also includes questions regarding the utilization of CARES Act[^1] funding. However, this office is not authorized to interpret or opine on federal law by official opinion.

With respect to your first question, Section 37-7-301 vests the school board of all school districts with certain powers and duties. Two different subparts speak to early childhood education programs. Section 37-7-301(ss) authorizes boards to implement voluntary prekindergarten programs in conjunction with the Early Learning Collaborative Act of 2013 ("ELCA"),[^2] which utilizes a variety of funding sources and a partnership with one or more providers of early childhood education. Alternatively, Section 37-7-301(zz) authorizes boards to fund and operate early childhood programs that do not conflict with the ELCA. Specifically, Subsection (zz) authorizes boards:

[t]o fund and operate early childhood education programs, defined as programs for children less than five (5) years of age on or before September 1, and to use any source of revenue for such early childhood education programs. Such programs shall not conflict with the Early Learning Collaborative Act of 2013.

If the District chooses to implement a 3K program at another magnet elementary school within the District, there is clear statutory authority to do so under Section 37-7-301(zz).

As to whether tuition is authorized under the statute, the statute does not speak specifically to sources of funding for a 3K program other than to state that boards may "fund and operate" such programs using "any source of revenue." Id. The ELCA, however, does envision parent tuition as a source of local matching funds. Miss. Code Ann. § 37-21-51(3)(h)(iv). Using the funding language in the ELCA as a guide, we find no prohibition against charging tuition for a 3K program under Section 37-7-301(zz).[^3]

Your second question is too broad to address by official opinion. See MS AG Op., Barrett at 1 (Aug. 29, 1984) (refusing to respond by official opinion on the basis that the question posed was overly broad); MS AG Op., McCaughn at 2 (Aug. 5, 2016) (same). However, for your guidance, Section 37-7-301(zz) authorizes the school board "to fund and operate voluntary early childhood education programs … and to use any source of revenue for such early childhood education programs." Turning to your third question, the statute is silent as to the meaning of "any source of revenue." We recommend you contact the MDE and/or the Technical Assistance Division of the Office of the State Auditor for guidance on this question.

Your fourth question asks what would be included in the necessary costs of a 3K program. This question is too broad to address by official opinion. However, for your guidance, the statute does not enumerate specific costs but does authorize the board "to fund and operate" the program. Section 37-7-301(zz) (emphasis added).

Your fifth question asks whether the District may implement a tuition-based after-school program for any child in the district in 3K through 6th grade. As noted above, Section 37-7-301(zz) already provides the authority for fee-based voluntary programs for children less than five years of age and states that school boards are authorized: "[t]o fund and operate voluntary early childhood education programs, defined as programs for children less than five (5) years of age on or before September 1, and to use any source of revenue for such early childhood education programs." Section 37-7-339(1) states that a school board may provide extended day and school year programs for kindergarten and/or school-age students "and may expend any funds for these purposes which are available from sources other than the adequate education program." Boards, "in their discretion, may charge a reasonable fee for such programs." Id.; see also MS AG Op., Keith at *1 (July 3, 2008) (opining that Section 37-7-339 "provides authority for a school district to implement an afterschool program for its students funded from funds available from sources other than the adequate education program and from reasonable fees paid by participants" but cautioning that the reasonable fees could not be more than the actual cost of the program). Based on the authority granted in Section 37-7-339 to provide fee-based extended day programs and the authority granted in 37-7-301(zz) authorizing programs for children less than 5 years of age, we are of the opinion that the District may implement an after-school program for 3K-6th grade and charge a reasonable fee in the form of parent tuition.

Your sixth question, regarding what other funds or revenue sources could be used if tuition is not sufficient for the after-school program, is too broad to address by opinion. For your guidance, the applicable statute states that boards may expend funds available from sources other than the adequate education program. Miss. Code Ann. § 37-7-339(2). For further guidance, again, we recommend you contact the MDE and Technical Assistance Division of the Office of the State Auditor.

In your seventh question, you ask what the costs of such an afterschool program would include, and we refer you to the plain language of Section 37-7-301(zz) that provides that the board is authorized "to fund and operate" the program. Whether any specific expenditure is incurred to "operate" the after-school program is a question of fact that this office cannot address.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General

[^1]: The MDE has issued guidelines on school districts' use of CARES (Coronavirus Aid, Relief and Economic Security) Act funds. We recommend you contact MDE for any questions related to such funds.

[^2]: For purposes of the Early Learning Collaborative Act, prekindergarten children are "any children who have not entered kindergarten but will have obtained four (4) years of age on or before September 1 of a school year." Miss. Code Ann. § 37-21-51(1)(a).

[^3]: The Mississippi Constitution states, "The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe." MISS. CONST. art. VIII, § 201. Section 37-13-1 of the Mississippi Code echoes the constitution, stating: "There shall be maintained a uniform system of free public schools consisting of grades one through twelve . . . ." Based on the facts provided by the District, it does not appear that the programs in question run afoul of these mandates, but we caution the District to be aware of any actions that may potentially violate these sections in the future.