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

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

Under this opinion, a parent or guardian who is an Active Guard Reserve member of the National Guard (Army or Air Force) qualifies for the Section 37-15-29(5)(a) school-choice exception, the same as a regular active-duty Army or Air Force family. The AG concluded the choice extends to "any school in any district," and the statute applies "regardless of the residence of the child."

For National Guard families weighing where to send their children

Under this opinion, an AGR member has the same school-choice flexibility as a full-time active-duty military family: the statute lets the parent or guardian "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."

For school board members

The opinion reaches a categorical conclusion: AGR members of the Army or Air Force National Guard are "active members of the United States Armed Forces" within the Section 37-15-29(5)(a) carve-out. The AG based that on 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"), since Title 37 does not define the term.

For state legislators

The opinion notes that "[n]owhere in Title 37 is 'active member[] of the United States Armed Forces' defined," so the AG resolved the AGR question by looking to the Army and Air Force service descriptions. The opinion addresses only AGR members; it does not reach traditional drilling reservists or part-time guardsmen.

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) qualifies as an "active member" of the armed forces under Section 37-15-29(5)(a) is not addressed.

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

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/10/J.Harkins-October-03-2024-National-Guard-AGR.pdf-.pdf

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
3. 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).
4. 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