Student transfer case headed for another court hearing | St. Louis Public Radio

Student transfer case headed for another court hearing

Dec 28, 2015

Even as hundreds of students living in the Normandy school district continue transferring to nearby accredited schools, challenges to a court ruling in the longstanding case continue.

The next court date will be Feb. 9 in the Missouri Court of Appeals. At issue is whether the state board of education acted properly in classifying Normandy as accredited when the district became the Normandy Schools Collaborative at the start of the 2014-15 school year.

That action by the board brought doubt about whether students living in the district still had the right to transfer under a 1993 law that has been upheld twice by the Missouri Supreme Court.

After St. Louis County Circuit Judge Michael Burton ruled that the state board had acted improperly – he called Normandy not just unaccredited by “abysmally unaccredited” – the state board reversed itself and restored the unaccredited classification.

Now Normandy, the state and several districts that have received transfer students are appealing Burton’s ruling. They say the state board’s action was proper, and even though the board later reversed itself, the trial court’s reasoning needs another look.

“The circuit court’s conclusion that the State Board’s waiver of its own rules somehow constituted rulemaking defies reason,” the brief filed on behalf of the receiving districts says.

Credit Stephanie Zimmerman

In response, families who brought the original lawsuit seeking to maintain their children’s right to transfers say Burton’s ruling was correct, both legally and educationally. In their brief, they note Normandy’s scores on the annual state report card, which continue to be the lowest in Missouri, and quote Burton’s conclusion that to “call a school District with the lowest [scores] in the state – by far – ‘accredited’ makes no sense whatsoever.”

What the original ruling said

Since they began in 2013, transfers of hundreds of students have drained the budgets of Normandy and Riverview Gardens, the only unaccredited districts in the state. Both districts say the tuition and transportation costs for transfer students leave less money to educate students who choose to remain in their home district.  

The original action by the state board would have eased the burden on Normandy, which was dissolved and reconfigured at least in part because of concerns for its financial future.

After the classification of the new Normandy as accredited, the Department of Elementary and Secondary Education notified school districts that they had the option to decide whether to accept transfer students for the 2014-15 school year. Most said they would do so, but Pattonville, Ritenour, Ferguson-Florissant and Francis Howell – the district that had the most Normandy transfers – said they would not.

In his ruling issued in February of this year, Burton detailed the process under which the state board changed its accreditation classification for the newly formed Normandy collaborative. He concluded that the board had not acted properly.

As the transfer statute makes abundantly clear, every child deserves to be enrolled in a non-failing school district -- now. -- St. Louis County Circuit Judge Michael Burton

“Merely giving the NSC a new classification label — a label not found in any Missouri statute or rule — certainly does not make it ‘accredited,’” he wrote. “The state defendants’ efforts to circumvent the statutory process leaves this court with no other option than to find that the defendants committed ‘legal wrongs’ which need to be address by this court. The transfer statute clearly still applies.”

And, Burton added, his ruling also took note of the needs of the students living in Normandy.

"Every child deserves not to wait for the implementation and proven success of any well-intentioned program the state might offer,” he said. “As the transfer statute makes abundantly clear, every child deserves to be enrolled in a non-failing school district — now."

After Burton’s ruling, most districts in the case agreed to accept transfers. The exception was Francis Howell, which granted that right only to specific students who won a court order.

Normandy has worked to convince parents that its academic and disciplinary problems are improving; the number of students who are transferring has been dropping slowly but steadily.

What the appeal argues

In its brief filed with the appellate court, the state argues that when the state board created the Normandy Schools Collaborative, it had three choices on its accreditation classification: One of the three standard classifications of accredited, provisionally accredited or unaccredited; no classification at all; or to “treat the Collaborative in some fashion the State Board deemed best for the students living in the district. The State Board chose number 3.”

And, it adds, the circumstances under which the state board can waive its rules are broad, such as when the closing of a factory hurts a district’s property tax base. The board, it argues, can “waive its rules – even its accreditation rules – to meet the immediate needs of the Collaborative, just as it may do for other districts in other circumstances.”

The state school board can "waive its rules -- even its accreditation rules -- to meet the immediate needs of the Collaborative" -- Brief filed by the state

The state’s brief argues that the families who brought the original suit “are not bothered by the tuition provisions; they seem quite happy with the prospect of revenue being redistributed from the have-not’s to the have’s, with the Normandy Schools Collaborative paying districts such as Clayton and Ladue far more than the Collaborative itself can spend on students in its own schools – and far more than the marginal cost to those school districts of enrolling Normandy students.”

The Normandy district’s brief argues that state law “places no limitations whatsoever on the State Board’s authority to create a new accreditation classification for a newly reorganized school district.”

The brief filed on behalf of the receiving districts says that when the state board dissolved the old Normandy school district and formed the Normandy Schools Collaborative – with a new appointed board and a staff that had to reapply for its jobs, along with new academic programs and services – it was “completely restructured and revamped.” So, the brief argues, giving the collaborative a new accreditation status logically followed.

And, it adds, the situation applied only to one district, for a limited time, due to the “new, specific and distinctive circumstances” presented by Normandy, so the board acted within its authority.

What the families argue

In their brief, the families echo Burton’s characterization of Normandy’s academic performance as abysmal and argue that the moves by the state board to classify it as accredited are part of a pattern.

“The State Board has demonstrated time and again that it is opposed to the transfer statute, which nevertheless remains state law,” it says. “The State Board’s machinations regarding Normandy are only its latest attempts to circumvent the transfer statute.”

And it points to the district’s academic history as evidence that any classification of Normandy as accredited was unsubstantiated.

“Even if the State Board had the power to classify NSC as a ‘state oversight district,’ then,” the brief says, “NSC has never maintained an accredited school in its existence, since July 1, 2014. The Court need go no further. The transfer statute directly applies, and the circuit court’s decision must be affirmed.”

The State Board's machinations regarding Normandy are only its latest attempts to circumvent the transfer statute. -- Brief filed on behalf of families seeking transfers

Finally, it argues that overturning the lower court ruling would hurt the students that the transfer law is designed to help.

“If this Court reverses the circuit court,” the brief says, “the thousands of children who reside within NSC’s boundaries will be stuck in a failing school district with no recourse to transfer to schools that provide a quality education and would give the children significant chances for a better future. This result is the opposite of the intent of the legislature in enacting the transfer statute, which has twice been upheld by the Missouri Supreme Court.”

Josh Schindler, the lawyer who has represented the families, said in an interview that the briefs filed by the appellants continue what he considers to be a wrongheaded attitude that has been evident for years.

“This is wrong,” he said. “It's inappropriate. And what is being done here is what has been done in the last 10 years. DESE and the state board of education do not like the transfer statute. They fundamentally disagree with the two rulings of the Missouri Supreme Court.”

Future of Riverview Gardens transfers

Though the lawsuit directly involves only Normandy, the district that is more likely to get out from under the transfer requirement first is Riverview Gardens.

After its showing on this year’s annual performance review, where it earned 111 out of 140 points to put it solidly within full accreditation range, the district asked the state board of education for an upgrade to provisional accreditation. Riverview Gardens’ score left Normandy as the only district in the state in unaccredited territory.

The state board deferred a decision on that request but asked the Department of Elementary and Secondary Education to develop criteria to evaluate Riverview Gardens at the end of the current school year rather than waiting until next December.

Meanwhile, DESE issued a revised set of guidelines for student transfers this week that took into account the possible change for Riverview Gardens, noting that it could move up to provisional accreditation status on July 1, 2016.

If there is an attempt to move Riverview Gardens inappropriately to either provisionally accredited or accredited, there will absolutely be another round of litigation. -- Attorney Josh Schindler

“Should a district regain an accredited classification,” the revised guideline said, “the law does not provide any rights for students to continue to transfer. The Department urges all parties involved to provide a transition that is in the best educational interest of transfer student.

“The family, resident district and receiving district should work cooperatively so that existing transfer students may remain in the receiving district until a mutually agreeable and educationally advisable transition point is reached. This will vary by student and context but might generally be characterized as completing their time in a particular school building. Stakeholders should make each student’s well-being the priority when working through the transition and making decisions involving tuition rate and transportation support.”

DESE notes that its guidelines are advisory only and do not have the force of law or state regulations.

But Schindler, the lawyer who has been representing families seeking to transfer, cautioned that any move to upgrade Riverview Gardens that appears unwarranted is likely to prolong the court fight over the issue.

Meanwhile, three members of the Missouri Senate have pre-filed bills for next year’s legislative session to once again try to change the state’s transfer law. Similar efforts in the past two years have passed both the House and Senate but met with vetoes from Gov. Jay Nixon.

Follow Dale Singer on Twitter: @dalesinger