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Missouri Supreme Court revives possibility of school transfers

This article first appeared in the St. Louis Beacon, June 11, 2013 - The Missouri Supreme Court has unanimously rejected a lower court ruling in the St. Louis school transfer case, saying that a St. Louis County circuit judge must once again take up the issue over whether students who live in an unaccredited school district should be able to transfer, with their home district paying the tuition.

The issue, which has been in the courts for several years, has a new wrinkle: Since Circuit Judge David Lee Vincent ruled in May of last year, the St. Louis Public Schools have regained provisional accreditation. Lawyers arguing the case before the high court in March said that despite that change, the judges should decide whether the law is constitutional because other Missouri districts – including Normandy and Riverview Gardens in the St. Louis area – remain unaccredited.

In its decision handed down on Tuesday, the court said that Vincent erred by ruling that the transfer law is unconstitutional because it violates the Hancock amendment to the Missouri Constitution. That amendment bars governments from imposing new costs without providing the means to pay them.

The high court also said Vincent should not have accepted a so-called “impossibility” defense raised by suburban school districts that said they would not be able to accommodate a large influx of students that could result from the transfer law, known as section 167.131.

Elkin Kistner, attorney for Gina Breitenfeld, the only plaintiff left in the case, said he was happy with the court's ruling.

"I’m pleased that the law was interpreted in a way that is in conformity with the statutory framework," he said, "and that the Supreme Court court did not infer disasters that were not proven. I’m hopeful that my client Gina Breitenfeld will be able to move on now."

Kistner said that Breitenfeld's daughters have been attending school in Clayton under the law but because the city schools now are provisionally accredited, he was not sure of their plans for the fall.

Attorney General Chris Koster, whose office defended the law in court, said in an email:

"We are pleased that our position has prevailed. This clearly is a difficult situation, but our guiding principle has always been putting kids first. The state’s ultimate goal must be full funding of the foundation formula and 100 percent district accreditation in our state.”

Late Tuesday afternoon, the Clayton schools released this reaction:

"The district was disappointed to learn of the Supreme Court’s opinion in the case of Breitenfeld vs. the School District of Clayton, et al. We still believe, as we have asserted throughout this case, that the issues at hand have broad implications for all school districts throughout St. Louis County and across the state of Missouri. These issues still need to be resolved in a way that provides manageable parameters that protect the interests of students residing in both accredited and unaccredited school districts. While we have had time to briefly review the court’s opinion, we will continue to meet with our attorneys over the next few days to evaluate our options and provide updates once we have determined our next steps."

Don Senti, head of the Cooperating School Districts, told the Beacon Wednesday that superintendents in the area aren't trying to keep students from tranferring out of unaccredited districts. They just want a program that has clear parameters and would let receiving districts have the ability to plan.

He noted that a fix along those lines had moved pretty far along in the legislature before Vincent's ruling came down, and the feeling among lawmakers was that the issue would be handled by the courts. Now, he said, a bill to address the concerns of the school districts may be introduced again next year.

At the Department of Elementary and Secondary Education, spokeswoman Sarah Potter said in an email:

"The department is currently reviewing the Missouri Supreme Court ruling on the Breitenfeld vs. Clayton case, and what it means for Missouri school districts. We have no other comment on the case at this time."

Several families have been involved in the case since it was originally brought in 2007, but the only one left is Breitenfeld, who lives in the city and whose two daughters have attended school in Clayton for several years. Vincent’s ruling called for the family to pay nearly $50,000 in tuition to Clayton for the time they have spent in the district.

Because St. Louis schools are no longer unaccredited, said the opinion written by Judge Mary Russell, the impossibility defense “has no application here due to the fact that en masse section 167.131 transfers are not looming for these districts. The fact that SLPS now has received provisional accreditation means that this current case is narrowed in its scope to Breitenfeld’s two children, who already attend Clayton."

Russell’s ruling directs the trial court to take another look at the tuition order in light of its other conclusions.

Vincent’s ruling last year came after a trial that centered on an estimate that if the law were to remain in effect, more than 15,000 students would likely leave the city for schools in nearby county districts. The city schools would have to pay their tuition and transportation, estimated at $224 million for tuition and another $40 million to $60 million for transportation.

As a result, Superintendent Kelvin Adams of the St. Louis Public Schools said his district would not have enough money left to hold class for the students who remained. And county districts said they would not have enough space or personnel to handle the transfer students; the estimate said that 3,500 students would come to Clayton alone, which had just 2,500 students of its own.

The suburban districts also used the Hancock defense to make the point that the added costs imposed by the transfers would amount to a mandate that brings along with it the funds needed to pay for the transfer students’ education.

Though the Breitenfeld girls, Savanna and Elle, have never attended St. Louis Public Schools, the law applies to students living in the unaccredited district, not students who attended the public schools there. Vincent ruled that the family must pay Clayton tuition for their schooling for the 2009-12 school years, totaling $49,133.13.

But in her ruling, Russell wrote:

“The trial court did not address to what extent, if any, Breitenfeld would owe unpaid tuition costs for her two children if the defendant school districts had not prevailed in their assertions that section 167.131 should not be enforced against them. This case is remanded so that the trial court can enter a tuition reimbursement order that is consistent with this opinion.”

Last fall, the state Board of Education voted to grant provisional accreditation status to the city schools. That action would mean that students who live in the city would no longer be able to take advantage of the transfer provision, which covers all students. Along with Normandy and Riverview Gardens, Kansas City is the only other Missouri school district that is unaccredited.

The Kansas City Star reports that a separate case involving schools in that area schools is under appeal.

Last August, Circuit Judge W. Brent Powell write a mixed decision, ruling that individual school districts could claim a Hancock amendment violation if they demonstrated that they would suffer a net increase in costs.

Powell ruled in favor of the Independence, Lee’s Summit and North Kansas City districts, saying they had shown a Hancock violation, but he said two other defendant districts, Blue Springs and Raytown, had not.

With a new school evaluation system taking effect this year, lawyers who argued the Breitenfeld case before the state supreme court in March said that the law needs to be clarified even if it no longer applies to St. Louis.

Under questioning by the judges, Richard Walsh, an attorney for the city schools, noted that the state holds the power over accreditation for the St. Louis schools and would also would be responsible for paying aid for education. He said that to avoid a yo-yo effect, where the rug could be pulled out from under the city schools at any time, the issue needs to be decided.

“It’s not moot, your honor,” Walsh said.

Dale Singer began his career in professional journalism in 1969 by talking his way into a summer vacation replacement job at the now-defunct United Press International bureau in St. Louis; he later joined UPI full-time in 1972. Eight years later, he moved to the Post-Dispatch, where for the next 28-plus years he was a business reporter and editor, a Metro reporter specializing in education, assistant editor of the Editorial Page for 10 years and finally news editor of the newspaper's website. In September of 2008, he joined the staff of the Beacon, where he reported primarily on education. In addition to practicing journalism, Dale has been an adjunct professor at University College at Washington U. He and his wife live in west St. Louis County with their spoiled Bichon, Teddy. They have two adult daughters, who have followed them into the word business as a communications manager and a website editor, and three grandchildren. Dale reported for St. Louis Public Radio from 2013 to 2016.