This article first appeared in the St. Louis Beacon, June 20, 2013: In the wake of a Missouri Supreme Court ruling on transfers of students who live in unaccredited school districts, the state education department has advised districts to adopt policies for class sizes and for how they will determine which students to accept if they get more applicants than they can handle. These guidelines raise the question of whether districts will be able to limit how many students they accept.
Ruling last week in the long-running lawsuit now known as the Breitenfeld case, the court overturned a ruling by a St. Louis County circuit judge and said a law allowing students in unaccredited districts to transfer is constitutional. It rejected arguments that the law violates the Hancock amendment to the state constitution as well as contentions from accredited districts that they could not handle the expected influx of students.
Though the number of students eligible to transfer was dramatically reduced when the St. Louis Public Schools won provisional accreditation last year, the ruling still affects students living in the Normandy and Riverview Gardens districts in north St. Louis County as well as those in the Kansas City schools.
Under the law, students living in those districts – regardless of whether they have been attending the district’s public schools – may transfer to accredited districts in St. Louis County. The sending district must pay tuition and transportation; the receiving districts do not necessarily have discretion over how many students they have to accept, a rejection of the so-called impossibility defense.
Clayton schools, where the children of the plaintiff in the case have attended class, was a focus of the suit.
Options for districts to control
But the nine-point guidelines issued Wednesday by the Department of Elementary and Secondary Education included a section that appeared to advise districts that they will be able to have control over how many transfer students they may accept.
“If a school district does not have sufficient capacity to enroll all pupils who submit a timely application,” the guidelines say, “the school district should institute an admissions process to ensure all applicants an equal chance of admission, except that a school district may give preference for admission to siblings of children who are already enrolled in the school district under this section.”
Mark Van Zandt, general counsel for the education department, emphasized in an interview that the guidelines are non-binding and simply an effort to provide guidance as districts begin devising their own policies on how to comply with the court’s ruling.
“The court said in this particular case that, given the number of kids that would transfer, Clayton could not make an argument based on impossibility,” he told the Beacon. “The court made it clear it would not allow a defense of impossibility based on speculation.
“But realistically, the department has to look at the situation where a district does not have the capacity to enroll all of the kids who desire enrollment. We wanted to make sure the guidance anticipated as many circumstances as possible, which could include a district that needed to define its capacity.
"What the guidance does is provide an option on how they could develop a number that would define that capacity. It may be that some districts don’t need to do that, but it is a suggestion on how to address it if they do need to do it.”
Van Zandt said DESE would not provide any model on how a district might devise an admissions process, but he said other organizations, such as the Missouri School Boards Association, could help in that area.
At the association, attorney Susan Goldammer said it was waiting to see whether a similar case from the Kansas City area might bring a different result. She said that -- because the case addresses the same matter of law and the court did not issue an opinion in it when the opinion in the St. Louis case came out -- there was speculation that the court may not have said its last word in the matter.
At DESE, Van Zandt said the department’s guidelines are a starting point in what is likely to be a long process that could involve new legislation.
“Obviously this is an issue that the General Assembly may look at when they reconvene in January,” he said. “This is the beginning of the implementation of this law that assumes existing law. There may be changes. There may be other court challenges.
“In the interim, it’s an effort to begin implementation. The final word on this is going to be with local district officials working with their staff, the elected boards and legal counsel in their districts. This was just an effort to initiate the process.”
On Thursday, the Missouri Charter Public School Association issued this statement regarding the transfer case:
"We have consulted with both our attorney and DESE’s attorney and they are in agreement that the statute in question in Breitenfeld v. School District of Clayton does not allow students in the unaccredited districts of Normandy and Riverview Gardens to transfer into a charter school located in SLPS.
"The transfer statute in question references transferring to an “…accredited district…” Charter schools do not fit the statutory definition of a district, nor do charter schools go through the state’s accreditation process.
"We are seeking feedback from our membership to see if allowing students from unaccredited districts to transfer into charter schools should be on MCPSA’s legislative agenda for the 2014 session beginning in January."
Local district should act quickly
Given the timing of the court’s ruling, DESE urged districts to move quickly to adopt and publish policies governing class sizes and student-teacher ratios; for the coming school year, it said, such policies should be in place by Aug. 1, though in future years they should be adopted and made public by Jan. 15 for the coming school year.
Other guidelines include:
- To seek enrollment in an accredited district, a student must live in an unaccredited district.
- The parent or guardian of such a student should notify the resident district and the receiving district of the intent to enroll the student by Aug. 1 for the coming school year and by Feb. 1 in future years.
- Though the student may seek to attend a specific building within the receiving district, the district has the final say on where the student will attend.
- Unaccredited district must designate at least one receiving district to which it will provide student transportation. If a student wants to attend a different district, the family will be responsible for transportation.
- Transfer students will be eligible to take part in interscholastic athletics and other activities sponsored by the receiving district.
- If a district regains accreditation during the school year, a student who has transferred to another district should be allowed to finish the year at that school.
In a statement accompanying the guidelines, Chris Nicastro, commissioner of education, said:
“We need to provide guidance for districts in implementing the law. It's critical that policy be in place to ensure a smooth transition for new students transferring into accredited districts from unaccredited districts."
Last week’s ruling by the high court sent the case back to St. Louis County to determine how much tuition the plaintiff, Gina Breitenfeld, must pay to the Clayton school district for her two daughters, who live in the city but have been attending Clayton schools. The trial court ruling had said the family must pay nearly $50,000.
But it did not spell out how the school transfer law, which has been in the courts for several years and upheld twice by the Supreme Court, should be implemented.
At last year’s trial, when the St. Louis city schools were still unaccredited, a survey was introduced that said as many as 15,000 students from the city may transfer to accredited county districts, including 3,500 students to Clayton, which has just 2,500 resident students.
Now, no one is sure how many students may seek to take advantage of the opportunity to transfer to accredited districts, and no one is sure of the procedures that will control how the transfers take place.
The Cooperating School Districts convened a meeting of area superintendents last week to discuss the implications of the ruling. A statement released after the meeting said:
“We respect the decision of the Missouri Supreme Court and will work to comply in a way that is in the best interests of all children and families.
“We will work cooperatively to develop guidelines and logistics for these transfers.
“We continue to believe that legislation calling for reasonable parameters is necessary and we will propose such legislation in the upcoming session.”
At Riverview Gardens, one of the two local unaccredited districts, about 10 calls have come in asking about possible transfers, but spokeswoman Melanie Powell-Robinson said the district did not have much information to provide because it is still early in the process.
“We wish we knew more,” she said.
Late Wednesday, Normandy issued this statement:
“The Normandy School District Board of Education, administration and legal staff are currently reviewing the Missouri Supreme Court’s ruling on the 'unaccredited district tuition statute' to determine its implications for the district. Until all factors and what they may possibly imply for our students are taken into consideration, it would be premature for us to attempt to offer a comprehensive response to the decision. However, we do know that unaccredited districts will have to provide funds to cover transportation of students to at least one accepting district, and tuition costs that would normally be paid to the unaccredited school district will be paid to the school district to which students may transfer. This type of change in resources would impact any district that is in the process of planning and developing student programs, staff development, and all relevant support systems necessary to run the day to day operations.
"Parents, students, staff and other individuals within the Normandy footprint have shown a tremendous amount of support and pride in the district. This was recently evident when voters overwhelmingly supported the passage of Prop T, allowing the district to further enhance its services and programs to support the success of all students and the district as a whole. We are confident that with a focus on doing a few things and doing them well, will move us towards accreditation.
"We will not know the extent of the impact resulting from the Supreme Court’s ruling with regard to finances and student enrollment until this fall after our students return to school. In the meantime, our efforts remain focused on developing programs, systems, and processes for improving student performance and regaining accreditation.”
At both Riverview Gardens and Normandy, new superintendents are scheduled to begin work on July 1, further complicating the process.
Chris Tennill, spokesman for the Clayton schools, said his district had heard from about four dozen students inquiring about possible transfers but could not give much guidance on how to proceed.
In the meantime, he said, districts have to do what they can to get ready, particularly those that may be sending students to other districts.
"A key piece of this is that there are thousands of kids in those districts that aren’t necessarily enrolled in public schools, so Riverview and Normandy are going to want to make sure they verify residence," he said, "because they are going to be on the hook for paying the bill."
Legislature could play a role
Don Senti, who heads the Cooperating School Districts, had tried to help broker a solution to the transfer dilemma toward the end of the 2011 legislative session, but the proposal did not win passage.
The plan, which was put together by Senti, Superintendent John Cary of the Special School District and Jane Cunningham, then a Republican state senator from Chesterfield, had three parts:
- Students in unaccredited districts would have been provided with scholarships, up to the amount that was spent per child per year in their home district, to be used at a non-public, non-sectarian school in the city.
- To provide even more choice for the students involved, St. Louis County districts would be allowed to sponsor charter schools in the city, either individually or under the umbrella of the Cooperating School Districtd.
- Suburban schools asked to accept students from the unaccredited districts would be allowed to have a say in how many they would accept, according to their current enrollment and the class sizes they wanted to maintain.
After last week’s court decision, Senti said that he hopes lawmakers who have avoided the issue as it worked its way through the courts would take it up again next year.