Do students in failing Missouri school districts have the right to transfer out?

JEFFERSON CITY — In a case with major implications for state education policy, attorneys jousted Tuesday over a law allowing the state to require unaccredited school districts to pay for their students to transfer to better, neighboring districts.

The St. Louis and Clayton school districts contended that the law violates the Hancock Amendment to the Missouri Constitution, which prevents the state from creating unfunded mandates.

At a trial last spring, “the state admitted there was no funding mechanism … whatsoever” for the transfers, said Richard Walsh, who represents the special board that oversees St. Louis Public Schools.

The attorney general’s office argued that the 1993 law is constitutional and the potential cost has been vastly overestimated, especially now that St. Louis Public Schools has gained provisional accreditation.

“There is no potential for the doomsday scenario” cited by a lower court’s ruling throwing out the transfer law, said state Solicitor General Jim Layton.

The arguments, which took place in the Missouri Supreme Court, are the latest chapter in a six-year saga over a law that says children in unaccredited districts can transfer to nearby districts, at the expense of their home districts.

St. Louis County Circuit Judge David Lee Vincent III ruled in May that the law was unconstitutional and unenforceable.

At the trial, Vincent heard testimony predicting that if the law were upheld, thousands of St. Louis children would transfer to county schools, bankrupting the city district and dramatically raising costs for suburban districts.

Vincent ruled that the law violates the Hancock Amendment of the Missouri Constitution, by creating an unfunded mandate.

St. Louis parent Gina Breitenfeld appealed Vincent’s decision.

Breitenfeld and the attorney general’s office contend that after St. Louis Public Schools lost its accreditation in 2007, the city district was required to cover tuition costs for Breitenfeld’s two children, who attend public schools in the Clayton School District.

The state argued that paying tuition under the transfer law is not a new activity or service because the city district has always been required to educate students who live in the city.

Since St. Louis schools regained provisional accreditation last fall, the state added that the transfer law no longer applies to the Breitenfelds’ situation, except as it concerns past tuition.

In a friend-of-the-court brief, the Cooperating School Districts of Greater St. Louis says the issues are not moot because other unaccredited districts, such as Normandy and Riverview Gardens, would find themselves in the same situation as St. Louis Public Schools, owing tuition if students transferred.

During Tuesday’s arguments, several Supreme Court judges questioned how many students would actually use the transfer law, and where to draw the line at whether the state was imposing a new duty or activity.

A study by Terry Jones, a professor of political science at the University of Missouri-St. Louis, estimated that as many as 15,740 students would leave St. Louis Public Schools for suburban schools under the transfer law.

But when Walsh, the city schools’ attorney, cited that figure as evidence that the transfer law would be impossible to implement, Chief Justice Richard Teitelman responded: “That’s speculative.”

Later, in answer to Teitelman’s question, Walsh said that no students had used the law to transfer at this point. Breitenfeld’s children never attended St. Louis Public Schools.

Judge Zel Fischer wanted to know what constitutes a mandate requiring state funding under the Hancock Amendment.

For example, he wondered, what if the state required school districts to teach two years of Missouri history, but made math and science optional?

“Is that a wash?” Fischer asked.

Teitelman renewed the question with Mark Bremer, the attorney for the Clayton School District, by asking whether the state would have to pay if legislators required schools to teach an English class, for example.

Bremer said he couldn’t speak to specific course requirements, but “if the state Legislature decides to impose a mandate on a local political subdivision, such as a school district, they’ve got to very clearly lay out the amount of money they are going to commit to that.”

Legislators are watching the case closely. For years, school choice advocates have used the law as leverage, refusing to give suburban districts the authority to decide how many slots to offer city transfer students unless the Legislature also approved other options, such as tax credit-supported private school scholarships.

The case has already made one trip to the Missouri Supreme Court. It used to be known as Turner vs. Clayton, after original plaintiff Jane Turner.

Turner and two other families have since dropped out of the case, either because their children graduated or because of the “withering exhaustion” of the lengthy proceedings, said attorney Elkin Kistner, who represents Breitenfeld.

In the Turner decision, the high court upheld the law in July 2010 but sent the case back to the circuit court for further proceedings. That resulted in Vincent’s decision dealing with the Hancock Amendment.