Mississippi Advisory Opinions January 20, 2012: No. 2011-00543 (January 20, 2012)

No. 2011-00543.

Dear Mr. Norton:

Attorney General Jim Hood is in receipt of your opinion request as the attorney for the Lamar County School District and has assigned it to me for research and reply. After receiving your letter and speaking with you for clarification and additional information, you request an official opinion from this office on the following question:

Whether a family with a dwelling in two separate school districts where the school age children spend the night at each dwelling two or more nights per week, are considered to have dual residency and therefore able to choose which school district they want to attend?

No. The concept of dual residency is not provided for in Miss Code Ann. Section 37-15-29, and certain proof of residency must be provided for school attendance purposes.

In your letter requesting an opinion, you mentioned a family has two dwellings, one in the Lamar County School District and one outside of the district. You inquired as to whether those students can be considered residents of both districts as it pertains to the residency requirements for school enrollment and simply choose which school district to attend? Per our conversation, you provided additional information to clarify the circumstances surrounding your inquiry. There are no issues of separation or divorce, but one parent lives in a home which the family owns and the other parent lives in a home which the family leases. The school age children spend two or more nights in each residence during the week.

We begin our response by referencing MS AG Op., Ellis (October 17, 1997), which states you must look to the provisions of Section 37-15-29, as well as to the Mississippi Board of Education Residency Verification Policy #6600, to determine residency for school attendance purposes. Miss Code Ann. Section 37-15-29(1) provides as follows:

Except as provided in subsections (2), (3) and (4) of this section, no minor child may enroll in or attend any school except in the school district of his residence, unless such child be lawfully transferred from the school district of his residence to a school in another school district in accord with the statutes of this state now in effect or which may be hereafter enacted.

I am providing the full Mississippi Board of Education Residency Verification policy as an attachment, however, the pertinent portions of policy 6600 as it relates to your inquiry, states as follows:

1. The requirements relative to school district verification of student residency are as outlined below. The attached form is suggested as a way to collect the required information.

I. POLICY

Definition of residence for school attendance purposes:

The student physically resides full time, weekdays/nights and weekends, at a place of abode located within the limits of the school district.

1. Effective for the 1990-91 school year, all school districts will require students who are seeking to enroll or continue to enroll in a school district to register at the school they are assigned to attend. The school district shall verify the residence of each student.

2. In succeeding years any new student enrolling or entering a school district or any continuing students whose residence has changed will be required to verify his or her residence address as herein provided as a part of the registration process.

II. PROCEDURE

1. Each student identified in paragraphs 1 and 2 above must establish his or her residency in the following manner:

a. STUDENTS LIVING WITH PARENTS OR GUARDIAN

The parent or legal guardian of a student seeking to enroll must provide the school district with at least two of the items numbered (1) through (9) below as verification of their address, except that any document with a post office box as an address will not be accepted.

(1) Filed Homestead Exemption Application form;

(2) Mortgage Documents or property deed;

(3) Apartment or home lease;

(4) Utility bills;

(5) Driver's license

(6) Voter precinct identification;

(7) Automobile registration;

(8) Affidavit and/or personal visit by a designated school district official;

(9) Any other documentation that will objectively and unequivocally establish that the parent or guardian resides within the school district; and, in the case of a student living with a legal guardian who is a bona fide resident of the school district;

(10) Certified copy of filed petition for guardianship if pending and final decree when granted.

This office is of the opinion there is no concept of dual residency as it pertains to Section 37-15-29. Similarly, there is no statutory definition of "residence" under Section 37-1529, but verification requirements are provided through the Mississippi Board of Education policy. Residency for school attendance purposes is generally a factual determination to be made by the school district. Should a student be found to not have primary residency in that school district, their only alternative allowed by law, would be to obtain a transfer pursuant to Section 37-15-31.

If we may be of further service, please let us know.

Very truly yours,

JIM HOOD, ATTORNEY GENERAL

By:

Raina Anderson Lee

Special Assistant Attorney General