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

For school boards considering a partner-program transport request

Under the opinion, if the board makes the factual determination that the program is a "special or alternative program approved by school boards" under § 37-41-3, the district "may provide transportation to the participants who are not enrolled in the School District." Two limits come straight from the statute: "[n]o additional funds shall be allocated or expended for such purpose," and the participants "shall not be included in transportation reports." The opinion also notes the district "is also not required to provide such transportation," so the decision is discretionary.

For superintendents and transportation directors

The opinion's operative limits are that no additional public funds may be expended for the special-program transport, and the non-enrolled participants are not counted in transportation reports. The opinion does not address how to structure routes or staffing; it sets those statutory conditions, and whether the program qualifies is the board's factual determination.

For programs asking a Mississippi district for transport

Under the opinion, the program must be approved by the school board as a "special or alternative program," and the district's authority to transport non-enrolled participants is permissive, not mandatory, so the board can decline. The opinion does not address fees or who funds any cost; it requires that the district expend no additional public funds.

Common questions

Q: What's a "special or alternative program" under § 37-41-3? A: The statute does not list specific examples, and the opinion says whether a given program qualifies "is a factual determination to be made by the School District." The 2013 Null opinion applied the same provision to let a district transport private-school students to a vocational center.

Q: Can the district charge the partner program for the bus rides? A: The opinion does not address fees. It requires only that "[n]o additional funds shall be allocated or expended" by the district for the special-program transport.

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

Q: Do non-district participants count in transportation reports? A: No. The opinion quotes § 37-41-3 that "such children shall not be included in transportation reports."

Q: Can the district transport out-of-state participants? A: Under § 37-41-3, special-or-alternative-program transport is "not limited to students enrolled in the public schools" (the program here drew students "from all over the country"), so non-enrolled participants may be transported if the board approves the program and the district spends no additional public funds.

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