MS 2024-10-J-Harkins-October-03-2024-National-Guard-AGR-pdf October 3, 2024

Are National Guard Active Guard Reserve members 'active members of the U.S. Armed Forces' for Mississippi school-choice purposes?

Short answer: Yes. Members of the National Guard Active Guard Reserve qualify as 'active members of the United States Armed Forces' under Section 37-15-29(5)(a). Their children may enroll in any Mississippi school district and any school campus, regardless of residence.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

Mississippi school-choice law has a special carve-out for active-duty military families. Section 37-15-29(5)(a) lets parents or legal guardians who are "active members of the United States Armed Forces" enroll their children in any school district and any school campus in the state, regardless of where the family lives. Senator Harkins asked whether members of the National Guard Active Guard Reserve (AGR) qualify under that provision and, if so, whether the choice extends to any school in any district.

The AG said yes on both counts. AGR members of both the Army and the Air Force are full-time active-duty service members supporting reserve units. The Army Reserve's own description says AGR Soldiers "serve full-time on Active Duty." The Air Force Reserve says AGR reservists "serve full time on active-duty assignments and receive active-duty benefits." Title 37 of the Mississippi Code does not define "active member[] of the United States Armed Forces," so the AG looked to the official descriptions of AGR service and concluded the term covers AGR members.

The second question, whether parents can pick any school in any district, was easier. The statutory text says exactly that: "regardless of the residence of the child."

What this means for you

For school district administrators

If a parent or guardian shows up to enroll a child and is an Active Guard Reserve member of the National Guard (Army or Air Force), the family qualifies for the Section 37-15-29(5)(a) school-choice exception. Treat AGR members the same as you would treat active-duty regular Army or Air Force families. The choice extends to any school district and any school campus in Mississippi, not just to those near the duty station. Document the AGR status (orders showing full-time active duty assignment) for the file.

For National Guard families weighing where to send their children

You have the same school-choice flexibility as a full-time active-duty military family. You can pick any Mississippi public school district and any campus within that district. You do not need to live within the district's boundaries. The statutory term is "regardless of the residence of the child."

For school board members

The opinion affirms a categorical rule: AGR members are within the Section 37-15-29(5)(a) carve-out. There is no district-by-district discretion to interpret AGR status differently. If a district has been excluding AGR families from the active-duty exception, the practice should be revisited.

For state legislators

Title 37 still does not define "active member[] of the United States Armed Forces," and the AG had to import the definition from federal/military service descriptions. If the legislature wants greater clarity (for instance, including or excluding traditional reservists, drilling-status guardsmen, or other categories), a definitional amendment is the way to do it. AGR is the easy case; harder questions remain about other status categories.

Common questions

Who is an AGR member?

Active Guard Reserve (AGR) is a full-time, active-duty assignment within the Army Reserve, Army National Guard, or Air Force Reserve / Air National Guard. AGR personnel are paid as active-duty service members and receive active-duty benefits. They are not the same as traditional drilling reservists or guardsmen, who serve part-time.

What does the school-choice exception in Section 37-15-29(5)(a) say?

It says: "Those children whose parent(s) or legal guardian(s) are active members of the United States Armed Forces may, at the discretion of their parent(s) or legal guardian(s), enroll and attend the school district and school campus of their parent's or legal guardian's choosing, regardless of the residence of the child."

Does this apply only to deployments, or year-round?

Year-round. The statute does not condition the exception on a deployment, a relocation, or a particular duty status beyond active armed-forces membership.

Can the family pick a school outside the district they live in?

Yes. The statutory phrase "regardless of the residence of the child" means residence is not a barrier. The family chooses the district and the specific campus.

Does this opinion address part-time National Guard members who are not AGR?

No. The opinion is limited to AGR members. Whether a traditional drilling guardsman or reservist (someone serving part-time, with a civilian primary occupation) qualifies as an "active member" of the armed forces under Section 37-15-29(5)(a) is not addressed. That harder question would need a separate opinion or legislative clarification.

Does the receiving district have to admit the child?

The statute creates an entitlement on the parent's side ("may enroll … regardless of the residence"). District-level capacity, special-program prerequisites, and similar operational constraints would still apply consistent with state law and district policy.

Background and statutory framework

Section 37-15-29(5)(a) is the Mississippi school-choice exception for active-duty military families. It allows parents or legal guardians who are "active members of the United States Armed Forces" to enroll their children in any school district and any campus, regardless of residence.

Section 33-1-1(d), (e) defines the Mississippi Army National Guard and the Mississippi Air National Guard as members of federally recognized units of the National Guard which are reserve components of the Army or Air Force.

Title 37 has no definition of "active member[] of the United States Armed Forces." The AG used the official Army and Air Force descriptions of AGR service ("full-time on Active Duty," "full time on active-duty assignments and receive active-duty benefits") to confirm that AGR members fall within the term.

Citations

Miss. Code Ann. § 37-15-29(5)(a)
Miss. Code Ann. § 33-1-1(d), (e)

Source

Original opinion text

October 3, 2024
The Honorable Josh M. Harkins
Mississippi State Senate
Post Office Box 1018
Jackson, Mississippi 39215-1018
Re:

Recent Changes to Mississippi Code Annotated Section 37-15-29

Dear Senator Harkins:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. Do members of the National Guard Active Guard Reserve (AGR) qualify under Mississippi
Code Annotated Section 37-15-29(5)(a)?
2. If so, can the qualifying parent(s) or legal guardian(s) select any school in any district?
Brief Response
1. For the purposes of Section 37-15-29(5)(a), members of the National Guard AGR are
"active members of the United States Armed Forces." Miss. Code Ann. § 37-15-29(5)(a).
2. Qualifying parent(s) or legal guardian(s) may select any school in any district "regardless
of the residence of the child." Miss. Code Ann. § 37-15-29(5)(a).
Applicable Law and Discussion
One of the exceptions to the requirement of a minor child attending school in the district of his or
her residence is set forth in Section 37-15-29(5)(a), which states: "Those children whose parent(s)
or legal guardian(s) are active members of the United States Armed Forces may, at the discretion
of their parent(s) or legal guardian(s), enroll and attend the school district and school campus of
their parent's or legal guardian's choosing, regardless of the residence of the child." Nowhere in
Title 37 is "active member[] of the United States Armed Forces" defined.

Your question concerns the status of members of the National Guard AGR and whether they
qualify as "active members of the United States Armed Forces." Id. As an initial matter, the "Army
National Guard shall mean the members of federally recognized units and organizations of the
Mississippi National Guard which are a reserve component of the United States Army," and the
"Air National Guard shall mean the members of federally recognized units and organizations of
the Mississippi National Guard which are a reserve component of the United States Air Force."
Miss. Code Ann. § 33-1-1(d), (e).
Army "AGR Soldiers serve full-time on Active Duty in units and organizations of the Army
Reserve, or that directly support the Army Reserve." U.S. Army Reserve, Join Our Team: Active
Guard Reserve (AGR), https://www.usar.army.mil/AGR/ (last visited Oct. 3, 2024). Air Force
Active Guard "Reservists serve full time on active-duty assignments and receive active-duty
benefits for the duration of their contract." Air Force Reserve, Ways to Serve: Air Force Reserve,
https://www.airforce.com/ways-to-serve/air-force-reserve (last visited Oct. 3, 2024). According to
their respective definitions, both Air Force and Army National Guard AGR are "active members
of the United States Armed Services." Miss. Code Ann. § 37-15-29(5)(a). Consequently, because
Title 37 does not define "active member[] of the United States Armed Forces," and based on the
official descriptions of Army and Air Force Active Guard Reservists, it is the opinion of this office
that members of the National Guard AGR qualify as "active members of the United States Armed
Forces" under Section 37-15-29(5)(a).
In response to your second question, the qualifying parent(s) or legal guardian(s) under Section
5(a) may select "the school district and school campus of their choosing, regardless of the
residence of the child." (emphasis added). It is the opinion of this office that such language allows
a parent or legal guardian, within the parameters of Section 37-15-29, to choose any school in any
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/ Caleb A. Pracht
Caleb A. Pracht
Special Assistant Attorney General