Can a Mississippi public school district bus non-district students to a special STEM program?

Plain-English summary

A federal Army Corps research center in Warren County runs a residential STEM program. Students come from across the country, with a few slots reserved for Vicksburg Warren School District kids. Participants are housed at the National Guard Headquarters and shuttled around Warren County to events. The Corps asked the district to handle the bus transport for everyone, including the out-of-district participants. The district's attorney asked the AG whether that was lawful.

The AG split the question across two transportation statutes.

§ 37-41-3 governs basic and special-program transport. Public school students who live more than a mile from school are entitled to a ride. Beyond that, the same statute says: "Children enrolled in special or alternative programs approved by school boards may be provided transportation even though such children are not otherwise entitled to transportation under the provisions of this chapter. No additional funds shall be allocated or expended for such purpose, and such children shall not be included in transportation reports." The 2013 Null opinion already used this provision to bless a district transporting private-school students to a vocational center. The Hopson opinion extends the same logic: if the school board determines (as a factual matter) that the program qualifies as a "special or alternative program," the district may bus non-district kids, but no additional public funds can go to the trip and the kids do not count in transportation reports.

§ 37-41-27(1) is the other transport statute, covering "athletic events, events of boys' and girls' clubs, events of Future Farmers of America or 4-H Clubs and special events in connection with the schools which the boards may consider a part of the educational program." Unlike § 37-41-3, this one is limited to "participating students" of the public school district. So the district could not use § 37-41-27 to transport kids who are not enrolled in Vicksburg Warren.

The opinion is helpful precisely because it identifies which statutory pathway works (§ 37-41-3) and which one does not (§ 37-41-27).

What this means for you

If you serve on a Mississippi school board considering a partner-program transport request

Make the factual determination on the record: is this a "special or alternative program approved by the board"? If you adopt the program by resolution and conclude it serves a legitimate educational purpose for participating students (whether enrolled in your district or not), § 37-41-3 lets you transport everyone. But the rider matters. No additional public funds. That means existing route capacity, existing buses, existing drivers on existing pay schedules. You cannot add a route, add a bus, add a stipend, or hire an extra driver to serve the program. If the federal partner wants the trip beyond what your existing routes cover, they need to fund the difference (or a private partner does).

If you are a superintendent or transportation director

Audit your existing routes before saying yes. Confirm you can absorb the added stops without extra hours, fuel, or contracted drivers. Document the capacity analysis in writing. Treat the participant kids exactly as your existing transport policy treats riders for record-keeping purposes, but exclude them from transportation reports as the statute directs.

If you run a federal or other partner program asking a Mississippi district for transport

Bring a written program description to the school board. Spell out the educational purpose, age range, schedule, drop-off and pick-up points, and any safety arrangements. Be ready to fund any incremental cost the district cannot absorb. Understand that if the board declines, that is within its discretion: § 37-41-3 is permissive, not mandatory.

If you are a parent of a non-district student in such a program

Whether your child gets a ride depends on the local school board's decision and on whether the district can absorb the trip without spending extra. The opinion gives a legal framework, not an entitlement. Coordinate with the program organizers.

Common questions

Q: What's a "special or alternative program" under § 37-41-3?
A: The statute does not list specific examples. The 2013 Null opinion used it for transport to a vocational center for private-school students. A federal STEM partnership at an Army research lab plausibly fits, but the school board has to make the call. Courts review that determination if challenged.

Q: Can the district charge the partner program for the bus rides?
A: The opinion does not address fee structures. As a practical matter, if the district's existing routes absorb the trip with no marginal cost, there is nothing to charge for. If the program requires extra capacity, the district cannot pay for that incremental cost from its budget under the "no additional funds" rule, but the program partner can. Document the arrangement.

Q: Does this work for events under § 37-41-27 too?
A: No. § 37-41-27 transportation to athletic events, club events, or other special events "in connection with the schools" is limited to participating students of the public school district. A district may not use a § 37-41-27 trip to carry non-district kids.

Q: What if a student is dual-enrolled in a private school and the district?
A: The 2013 Null opinion treated the question of who is enrolled as a factual matter for the district. If a student is on the rolls and otherwise eligible, that is district transport under § 37-41-3 generally. If not enrolled but participating in a special program, § 37-41-3's "special or alternative program" track is the framework.

Q: Do non-district participants count in transportation reports?
A: No. § 37-41-3 specifies that "such children shall not be included in transportation reports." That keeps the federal- and state-funding formulas tied to actual district enrollment.

Q: Does this apply to charter schools or out-of-state students?
A: The statute is about who can ride, not about residency. A charter-school student or an out-of-state participant in a special program approved by the local board can be transported under § 37-41-3 as long as the no-extra-funds rule is observed.

Background and statutory framework

Mississippi's Title 37, Chapter 41 governs Pupil Transportation. § 37-41-1 sets the chapter's scope: "school districts and the transportation of students enrolled in public schools." § 37-41-3 carries the entitlement to transport (more than a mile from school) and the "special or alternative program" optional carveout. § 37-41-27 governs use of public school buses for school-related events.

The legislative pattern is two-track. Routine and special-program transport is permissive and can include non-district students at no extra cost. Event transport is limited to participating district students. The Hopson opinion sorts the partner-program question into the right track.

Citations

• Miss. Code Ann. § 37-41-1 (chapter applies to school districts and public-school students)
• Miss. Code Ann. § 37-41-3 (entitlement to transport plus special-or-alternative program transport, no additional funds)
• Miss. Code Ann. § 37-41-27(1) (use of school buses for athletic events and school-related educational programs, limited to district students)
• MS AG Op., Carnathan (Nov. 14, 1997) (basic transport entitlement)
• MS AG Op., Null (Nov. 15, 2013) (district may transport private-school students to vocational center under § 37-41-3)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/09/W.Hopson-III-September-19-2022-Transportation-of-Non-Public-School-Students.pdf

Original opinion text

September 19, 2022
The Honorable W. Briggs Hopson III
Attorney, Vicksburg Warren School District
1201 Cherry Street
Vicksburg, Mississippi 39183-2919
Re:

Transportation of Non-Public School Students

Dear Senator Hopson:
The Office of the Attorney General has received your request for an official opinion.

Background
According to your request, an educational program affiliated with the United States Army
Engineering and Research Development Center is open to and attended by students from all over
the country with several slots designated for students enrolled in the Vicksburg Warren School
District ("School District"). Students are housed at the 168th National Guard Headquarters in
Warren County and attend programs at the United States Army Engineering and Research
Development Center and other locations around Warren County. The School District has been
asked to transport all participants to and from the housing location and program events.
Question Presented

Could this program qualify as a "special or alternative program" of the School District under Miss.
Code Ann. Section 37-41-3, or alternatively, if deemed by the school board to be an educational
program under Miss. Code Ann. Section 37-41-27, could participants who are not enrolled in the
School District ride with students enrolled in the School District to this program?
Brief Response
If the School District makes the factual determination that the program you describe is a special or
alternative program under Section 37-41-3, the School District may provide transportation to the
participants who are not enrolled in the School District. However, the School District may not
expend any additional public funds for such transport. Transportation to an educational program
under Section 37-41-27, however, is limited to students of the School District.

Applicable Law and Discussion
Title 37, Chapter 41 (Transportation of Pupils) applies "to school districts and the transportation
of students enrolled in public schools." Miss. Code Ann. § 37-41-1. Public school students who
live more than a mile from their school are entitled to transportation "from home to school and
from school to home" pursuant to Section 37-41-3. MS AG Op., Carnathan at 1 (Nov. 14, 1997).
Section 37-41-3 further grants school districts discretion to provide transportation to "children"
otherwise not entitled to transportation under certain circumstances. Section 37-41-3 specifically
provides:
Children enrolled in special or alternative programs approved by school boards may
be provided transportation even though such children are not otherwise entitled to
transportation under the provisions of this chapter. No additional funds shall be
allocated or expended for such purpose, and such children shall not be included in
transportation reports.
Transportation to these special or alternative programs is not limited to students enrolled in the
public schools. See MS AG Op., Null at 1 (Nov. 15, 2013) (opining that a school district could
provide private school students transportation to a vocational center). A school district is also not
required to provide such transportation. The programs must be approved by the school board and
no additional funds shall be expended for providing transportation to the special or alternative
programs for children not otherwise entitled to transportation. Whether the program you describe
in your request is a special or alternative program under Section 37-41-3 is a factual determination
to be made by the School District.
Separately, Section 37-41-27 provides, in relevant part:
The local school boards, subject to rules and regulations promulgated by the State
Board of Education, may permit the use of publicly owned school buses for the
transportation of participating students, teachers, coaches and sponsors in
connection with athletic events, events of boys' and girls' clubs, events of Future
Farmers of America or 4-H Clubs and special events in connection with the schools
which the boards may consider a part of the educational program . . . .
Unlike Section 37-41-3, transportation to special events considered part of the educational program
pursuant to Section 37-41-27(1) is limited to students of the public school district. Thus, the School
District could not provide transportation to such special events under Section 37-41-27 to
participants who are not enrolled in the Vicksburg Warren School District.

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