Can a Mississippi community college charge out-of-state students in-state tuition for its nursing program?

Plain-English summary

Northwest Mississippi Community College in Senatobia wanted to know if it could offer in-state tuition to out-of-state students entering its nursing program. The default rule under Section 37-103-25(2) is that the total tuition for out-of-state students at a Mississippi community college "shall not be less than the average cost per student from appropriated funds." That sets a floor: out-of-state students normally pay closer to the actual per-student cost, not the subsidized in-state rate.

But the same statute, in subsection (4), gives community college boards a structured way to waive out-of-state tuition. The waiver requires two things, both of which must be true:

1. The board determines the policy fits the educational mission of the college.
2. A local industry or business, or a state agency, agrees to reimburse the college for the entire amount of the out-of-state tuition that gets waived under the policy.

Without a reimbursing partner, a community college cannot just decide to charge out-of-state students the in-state rate. The waiver is essentially a sponsorship arrangement: a hospital, employer, or agency agrees to pay the difference, and in exchange the college can offer the lower rate to recruit students into a program (often a workforce-pipeline program like nursing).

The opinion also touches on a related point: state appropriated funds in the community college funding formula are allocated based only on students who reside in Mississippi, with one carve-out. "Associate degree nursing students who reside outside the State of Mississippi may be counted for pay purposes." That means associate-degree nursing students from out of state still count in the FTE-based reimbursement to the college, even though they are out-of-state.

What this means for you

If you administer or sit on the board of a Mississippi community college

The opinion holds a community college may offer out-of-state residents in-state tuition only when it meets Section 37-103-25(4): the board determines the waiver policy is in accordance with the college's educational mission, and a local industry or business or a state agency agrees to reimburse the college for the entire amount of the waived out-of-state tuition. It holds whether a proposed policy fits within Section 37-103-25(4) is a determination for the college's governing authorities.

If you are a prospective out-of-state nursing student looking at a Mississippi community college

The opinion holds the default out-of-state tuition under Section 37-103-25(2) "shall not be less than the average cost per student from appropriated funds," and that a waiver to the in-state rate is available only under a Section 37-103-25(4) policy backed by a reimbursing business, industry, or state agency.

If you are a hospital, employer, or workforce agency interested in sponsoring students

The opinion identifies Section 37-103-25(4) as the authority for waiving out-of-state tuition: it requires a local industry or business or a state agency to agree to reimburse the college for the entire amount of tuition waived under the policy, and a board determination that the policy fits the college's educational mission.

On the funding-formula carve-out

The opinion holds that state funds are allocated and spent only on students who reside in Mississippi, with one exception: associate degree nursing students who reside outside the state may be counted for pay purposes in the FTE funding formula, citing 2023 S.B. 3010, § 4.

Common questions

Q: Can a Mississippi community college give out-of-state students in-state tuition without a sponsor?
A: No. Section 37-103-25(2) sets out-of-state tuition at no less than the average per-student cost from appropriated funds. The only structured waiver in the community college section is § 37-103-25(4), and it requires a reimbursing business, industry, or state agency.

Q: Does the waiver have to be for nursing students specifically?
A: No. Section 37-103-25(4) is not limited to nursing; the opinion describes it as applying to a board policy waiving out-of-state tuition that the board determines fits the college's educational mission and that has a reimbursing business, industry, or state agency. The opinion's facts concerned a nursing program.

Q: What about veterans? Can out-of-state veterans pay in-state tuition?
A: Yes, under § 37-103-25(2). Veterans (as defined by Title 38) and people entitled to Title 38 education benefits get in-state tuition automatically, without needing a § 37-103-25(4) waiver policy.

Q: Can the state agency that reimburses the college be Mississippi state government, or does it have to be a private business?
A: Either works. The statute reads "a local industry or business or a state agency." A state workforce-development agency or a Mississippi state agency with a workforce need can be the reimbursing partner.

Q: How do associate-degree nursing students from out of state factor into the funding formula?
A: The community college funding formula generally counts only Mississippi-resident students for FTE reimbursement, but the legislature carved out associate-degree nursing students who reside outside Mississippi. Those students may be counted for pay purposes in the FTE formula.

Background and statutory framework

The text of § 37-103-25(2) establishes the out-of-state baseline:

Except as otherwise provided in this subsection and subsections (3) and (4) of this section, the total tuition to be paid by residents of other states shall not be less than the average cost per student from appropriated funds.

Subsection (3) covers institutions of higher learning (the four-year universities, governed by IHL). Subsection (4) is the community college path.

Subsection (4) reads:

The board of trustees of any community college or junior college may develop and implement a policy for waiving out-of-state tuition for the college if the policy is determined by the board to be in accordance with the educational mission of the college and if a local industry or business or a state agency agrees to reimburse the college for the entire amount of the out-of-state tuition that will be waived under the policy. State funds shall be allocated and spent only on students who reside within the State of Mississippi. However, associate degree nursing students who reside outside the State of Mississippi may be counted for pay purposes.

The 2023 Senate Bill 3010, § 4 reinforces the FTE rule: "[F]unds . . . shall be disbursed on the basis of prior year full-time equivalency (FTE) of hours generated . . . counting only students who reside within the State of Mississippi. However, associate degree nursing students who reside outside of the State of Mississippi may be counted for pay purposes."

The statutory architecture distinguishes two flows: tuition (where waivers are allowed via subsection 4 with sponsorship) and state appropriated funds (where Mississippi residency is generally required, with the ADN nursing carve-out for FTE counting).

Citations

• Miss. Code Ann. § 37-103-25(1), (2), (3), (4)
• 2023 S.B. 3010, § 4

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/04/J.LamarJr.-April-2-2024-In-State-Community-College-Tuition-for-Out-of-State-Residents.pdf

Original opinion text

April 2, 2024
John T. Lamar, Jr., Esq.
Attorney, Board of Trustees
Northwest Mississippi Community College
214 South Ward Street
Senatobia, Mississippi 38668
Re: In-State Community College Tuition for Out-of-State Residents

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

Questions Presented

1. Per Mississippi Code Annotated Section 37-103-25, or any other state law, may Northwest Mississippi Community College offer in-state tuition to out-of-state residents who enter its nursing program?
2. If so, what requirements and parameters would there be for the out-of-state tuition waiver?

Brief Response

1. Generally speaking, the total tuition for out-of-state residents attending Mississippi community colleges "shall not be less than the average cost per student from appropriated funds." Miss. Code Ann. § 37-103-25(2). However, Section 37-103-25(4) sets forth when a community college board of trustees may implement a policy waiving out-of-state tuition. Whether a proposed policy fits within Section 37-103-25(4)'s statutory requirements is a determination to be made by the governing authorities of the community college.
2. Pursuant to Section 37-103-25(4), "[t]he board of trustees of any community college or junior college may develop and implement a policy for waiving out-of-state tuition for the college if the policy is determined by the board to be in accordance with the educational mission of the college and if a local industry or business or a state agency agrees to reimburse the college for the entire amount of the out-of-state tuition that will be waived under the policy."

Applicable Law and Discussion
Section 37-103-25 allows Mississippi community college boards of trustees to prescribe, with certain limitations, the tuition to be paid by students attending the college. Pursuant to Section 37-103-25(2):

Except as otherwise provided in this subsection and subsections (3) and (4) of this section, the total tuition to be paid by residents of other states shall not be less than the average cost per student from appropriated funds. However, the tuition to be paid by a resident of another state shall be equal to the [in-state] tuition amount established under subsection (1) of this section if:
(a) The nonresident student is either a veteran, as defined by Title 38 of the United States Code, or a person entitled to education benefits under Title 38 of the United States Code.
...
(c) The nonresident student's out-of-state tuition was waived according to subsection (3) or (4) of this section.

Subsection (3) only applies to institutions of higher learning; however, subsection (4) provides:

The board of trustees of any community college or junior college may develop and implement a policy for waiving out-of-state tuition for the college if the policy is determined by the board to be in accordance with the educational mission of the college and if a local industry or business or a state agency agrees to reimburse the college for the entire amount of the out-of-state tuition that will be waived under the policy. State funds shall be allocated and spent only on students who reside within the State of Mississippi. However, associate degree nursing students who reside outside the State of Mississippi may be counted for pay purposes.

Miss. Code Ann. § 37-103-25(4) (emphasis added). Accordingly, to have a policy waiving out-of-state tuition, (1) a community college board of trustees must determine such policy is in accordance with the educational mission of the college, and (2) a local industry or business or a state agency must agree to reimburse the college for the waived amount. Subsection (4)'s reference to "nursing students who reside outside the State of Mississippi" relates to the annual full-time equivalency funding formula for community colleges. See 2023 S.B. 3010, § 4 ("[F]unds . . . shall be disbursed on the basis of prior year full-time equivalency (FTE) of hours generated . . . counting only students who reside within the State of Mississippi. However, associate degree nursing students who reside outside of the State of Mississippi may be counted for pay purposes.").

In summary, it is the opinion of this office that a community college may only offer out-of-state residents in-state tuition when meeting the requirements set forth in Section 37-103-25(4). Whether a proposed policy fits within Section 37-103-25(4)'s statutory requirements is a determination to be made by the governing authorities of the community college.

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/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General