Can a Mississippi school superintendent close schools without first getting approval from the school board, even in an emergency?

Plain-English summary

Greenwood Leflore Consolidated School District's attorney asked whether the district's superintendent had authority to close schools without school board approval. Specifically, the request implied a past closure may have happened that way and asked about emergency situations.

The AG answered no on both fronts. The superintendent does not have independent authority to close schools, even for emergencies.

The framework: Section 37-13-65 lets a superintendent close schools because of an epidemic, the death/resignation/sickness/dismissal of teachers, or "any other emergency necessitating the closing of the school." But the statute begins with the phrase "Upon application from the school board." The plain reading is that the school board must apply (i.e., authorize the superintendent to close) before the superintendent can act.

Section 37-13-64 covers extreme weather closures. The same prior-authorization requirement applies. The 2015 Wright opinion settled this: "the school board must pre-authorize the superintendent to close schools due to extreme weather conditions and the school board may not retroactively grant such authority."

The local school board is the governing authority of the school district under Section 37-6-7. Section 37-9-14 lists superintendent powers and does not include authority to close schools. The opinion notes that both the Governor and local school boards have statutory authority to close schools; superintendents do not have it independently.

The opinion is for prospective guidance only. The AG cannot validate or invalidate any past closure under Section 7-5-25.

What this means for you

For Mississippi school superintendents

The opinion holds that a superintendent does not have independent authority to close schools, even in an emergency. Section 37-13-65 lets the superintendent close a school "[u]pon application from the school board," and the opinion reads that to mean the board must act first. Section 37-13-64 (extreme weather) carries the same prior-authorization requirement. The opinion's answer to whether any emergency allows a superintendent to close before board approval is "No."

For school board members

Under the opinion, closure authority rests with the board, not the superintendent acting alone. The board must, per the Wright opinion the AG quotes, "pre-authorize the superintendent to close schools," and "may not retroactively grant such authority." The superintendent executes a board-authorized closure; the board cannot ratify a unilateral closure after the fact.

For school district attorneys

The opinion turns on the "upon application from the school board" language in Section 37-13-65 and the prior-authorization rule from the Wright opinion: the board's authorization must come before the superintendent closes, and retroactive approval is not available. The opinion is prospective only and does not address any past closure.

For parents concerned about school operations

Under the opinion, the decision to close a school rests with the school board (which may grant the superintendent prior authority to act); the superintendent does not have independent authority to close schools, even for weather or other emergencies.

For state education administrators

The opinion's reading applies to Mississippi school districts generally: the local school board is the governing authority under Section 37-6-7, the superintendent's listed powers in Section 37-9-14 do not include closing schools, and closures under Sections 37-13-64 and 37-13-65 require prior board action.

Common questions

Q: What does "upon application from the school board" mean?
A: The opinion reads it to require that the school board act before the superintendent closes a school. As it puts it, "the superintendent does not have authority under Section 37-13-65 to close schools prior to official action being taken by the school board."

Q: Can a superintendent close schools in an emergency without board approval?
A: No. The opinion holds that "a superintendent is only granted authority to close schools in emergency situations in accordance with Sections 37-13-64 and 37-13-65, both of which require prior school board action."

Q: Can the board approve a closure after the superintendent has already closed?
A: No. The opinion quotes the Wright opinion that the board "may not retroactively grant such authority." The board must pre-authorize the closure.

Q: Where does the superintendent's authority come from, and why doesn't it include closing schools?
A: The opinion points to Section 37-9-14, which lists the superintendent's powers and duties, and notes those "do not include authority to close schools." The local school board is the district's governing authority under Section 37-6-7.

Q: Does the Governor have any role?
A: The opinion notes that "[b]oth the Governor and the local school boards have statutory authority to close schools" under the cited Title 37 provisions. The superintendent's lack of independent authority is separate from the Governor's authority.

Q: Does this opinion decide whether a past closure was proper?
A: No. The opinion states that official opinions "do not validate or invalidate past actions" and that it is "intended for future guidance only," even though the request indicated the superintendent may have closed a school in the past.

Background and statutory framework

Mississippi public schools are governed by local school boards under Section 37-6-7. The board sets policy; the superintendent administers. Closure authority is one of the policy decisions reserved to the board.

Section 37-13-64 (extreme weather) and 37-13-65 (epidemic, teacher absence, other emergencies) both speak in terms of the school board acting and the superintendent executing. The "upon application from the school board" language in 37-13-65 is the textual basis for requiring prior board action.

Section 37-9-14 lists the superintendent's powers and duties. Closure authority is not on the list. The superintendent has many operational powers but not the school-closure power.

The 2015 Wright opinion, cited by the AG, is the foundational pre-authorization rule. Wright addressed extreme-weather closures and held that pre-authorization is required and retroactive approval is not. The 2021 Pulley opinion confirms the same rule for other emergencies.

Under the opinion, the lawful path is prior board authorization: the board must authorize the superintendent before a closure, and cannot grant that authority after the fact. The opinion does not prescribe a particular form for that authorization beyond the statutory "application from the school board" and the Wright opinion's pre-authorization requirement.

The Pulley request indicated the superintendent may have closed a school in the past. The opinion answered prospectively only, stating that official opinions do not validate or invalidate past actions under Section 7-5-25.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25, AG opinions limited to prospective state law
• Miss. Code Ann. § 37-6-7, local school board as governing authority of district
• Miss. Code Ann. § 37-9-14, superintendent powers and duties (no closure authority)
• Miss. Code Ann. § 37-13-64, school closure for extreme weather
• Miss. Code Ann. § 37-13-65, school closure for epidemic, teacher absence, other emergencies

Prior AG opinions cited:

• MS AG Op., Magee (Aug. 29, 2008), AG opinions cannot validate or invalidate past actions
• MS AG Op., Wright (Mar. 18, 2015), school board must pre-authorize superintendent to close for extreme weather; no retroactive authority

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2021/12/K.Pulley-November-17-2021-School-Closures-Pursuant-to-Mississippi-Code-Annotated-Section-37-13-65.pdf

Original opinion text

November 17, 2021

Kelvin Pulley, Esq.
Attorney, Greenwood Leflore Consolidated School District
522 West Park Avenue
West Park Village, Suite L
Greenwood, Mississippi 38930

Re: School Closures Pursuant to Mississippi Code Annotated Section 37-13-65

Dear Mr. Pulley:

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

Issues Presented

1. Does the phrase "upon application from the school board," within Mississippi Code Annotated Section 37-13-65, forbid school superintendents from closing schools prior to the board's approval?

2. Is there any emergency situation that would allow a school superintendent to close school prior to the school board's approval?

Brief Response

1. Yes. A superintendent may only close schools pursuant to Section 37-13-65 based upon an application from the school board.

2. No. A superintendent is only granted authority to close schools in emergency situations in accordance with Sections 37-13-64 and 37-13-65, both of which require prior school board action.

Applicable Law and Discussion

As an initial matter, we note that opinions of this office are issued on prospective questions of state law pursuant to Section 7-5-25. Your request indicates that the superintendent may have closed a school in the past. Official opinions do not validate or invalidate past actions. MS AG Op., Magee at *1 (Aug. 29, 2008). This opinion is intended for future guidance only.

The local school board is the governing authority of a school district. Miss. Code Ann. § 37-6-7. Both the Governor and the local school boards have statutory authority to close schools pursuant to Title 37, Chapter 65. The general responsibilities and powers of superintendents, which are listed in Section 37-9-14, do not include authority to close schools.

In response to your first question, with respect to emergency closures, Section 37-13-65 provides, in relevant part: "Upon application from the school board, the superintendent of schools may close any school because of an epidemic prevailing in the school district or because of the death, resignation, sickness or dismissal of a teacher or teachers or because of any other emergency necessitating the closing of the school." Based on a plain reading of the statute, the superintendent does not have authority under Section 37-13-65 to close schools prior to official action being taken by the school board.

In addition to the authority to close schools under Section 37-13-65, superintendents also have authority to close schools due to extreme weather conditions, pursuant to Section 37-13-64. However, as with emergency closures under Section 37-13-65, the superintendent must first be granted authority by the local school board to close schools for extreme weather. See MS AG Op., Wright at *3 (Mar. 18, 2015) (opining that the school board must pre-authorize the superintendent to close schools due to extreme weather conditions and that the school board may not retroactively grant such authority.) Accordingly, in response to your second question, it is the opinion of this office that a superintendent does not have independent authority under Sections 37-13-64 or 37-13-65 to close schools in an emergency situation.

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/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General