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ACLU says schools can't legally limit transfers

This article first appeared in the St. Louis Beacon, Aug. 5, 2013: The American Civil Liberties Union of Eastern Missouri has advised the superintendents of the Kirkwood and Mehlville schools that they have no legal basis to turn away any transfer students on the basis of class size or available space.

In a letter to Thomas Williams of Kirkwood and Eric Knost of Mehlville, two top officials of the ACLU affiliate said that both the law governing the transfers and the Missouri Supreme Court ruling that upheld that law in June do not allow any districts to deny enrollment to students who qualify for the transfers because they live in unaccredited school districts.

“The legislature’s mandate that you accept all eligible students is unambiguous,” said the letter from Jeffrey Mittman, executive director of the affiliate, and Anthony Rothert, its legal director.

“For this reason, any guidance you might have received from the Department of Elementary and Secondary Education that suggests you are acting lawfully is in error. DESE’s guidance does not have the force of law. Even if it did, DESE cannot contravene the clear comment of the legislature in 167.131 [the transfer law].”

The letter added:

“We understand that compliance with Missouri law does impose some burden on your district, including hiring additional teachers. We do not, however, believe that it is ‘impossible’ for you to comply with 167.131.”

In response to the letter -- a copy of which was sent to Chris Nicastro, commissioner of elementary and secondary education -- DESE said in an email:

"The Department is working with school officials, CSD, and critical stakeholders, such as the ACLU of Eastern Missouri on transferring students from unaccredited to accredited school districts.  Agency staff will continue to communicate with ACLU of Eastern Missouri to ensure that all students have access to quality instruction."

Responding to the letter, Williams said in an email:

"Kirkwood School District has cooperated with the Department of Elementary and Secondary Education, Cooperating School Districts, Riverview Gardens, Normandy and numerous other area school districts in an attempt to implement a practical solution to the transfer situation for the 2013-2014 school year. We came to the table in good faith, and we are committed to working with our school communities to meet the needs of all students and families."

Late Monday, Knost said in an email:

"We are working hard to comply with the unaccredited student transfers to the best of our ability. We have utilized the Department of Elementary and Secondary Education's proposed guidelines and we willingly participated in the Cooperating School District's collective effort to provide transfer options for over 2500 Riverview Gardens and Normandy students. In these final days before the school year begins we are enrolling a significant influx of new students while adjusting classroom assignments, arranging for additional needed classroom resources, waiting to understand transportation arrangements and much more. We are working hard to add approximately 216 student transfers from Riverview Gardens while continuing to enroll in-district residents. The Mehlville School District currently participates in the Voluntary Interdistrict Choice Corporation that brings an additional 469 students to us from the city of St. Louis. We work hard to provide a quality education for all of our students and it is our interest to serve in a manner that does not compromise educational excellence for any of our currently enrolled or future enrolled students."

He also had addressed the legal question earlier. When Knost was asked by the Beacon at a Mehlville board meeting last month whether he thinks the law allows the district to limit the number of transfer students it has to accept, he responded:

“There’s a lot the law doesn’t say. There’s a lot the law leaves for interpretation.”

Under the law, passed in 1993, students who live in unaccredited school districts – currently Normandy and Riverview Gardens in north St. Louis County, plus Kansas City – may transfer to an accredited district in the same or an adjacent county. The sending district must pay tuition and, in some cases, transportation costs as well.

The relevant part of the law says that unaccredited school districts “shall pay the tuition … for each pupil resident therein who attends an accredited school in another district of the same or an adjoining county.”

Since a legal challenge to the law was filed in 2007, the Supreme Court has upheld it twice. In its first ruling, from 2010, the court stated flatly that the law “does not give an accredited school chosen by a student discretion to deny admission to that student.” It noted that an earlier version of the law did say that “no school shall be required to admit any pupil,” but that language was removed in 1993.

The court’s most recent ruling rejected two claims that had been accepted by a lower court, that the law imposed an unconstitutional unfunded mandate on receiving districts and that it would be impossible for those districts to accommodate all of the students who wanted to transfer.

After the court ruled in June, with another school year looming, both the sending districts and the potential receiving districts hurriedly began planning for how to handle transfer students. Cooperating School Districts played a lead role in facilitating the process, asking students who live in Normandy and Riverview Gardens to list their first, second and third choices on a transfer application that had to be submitted by last Thursday.

According to final numbers released late Monday by CSD, 2,640 students had filed transfer applications, including 1,189 from Normandy and 1,451 from Riverview Gardens. If those figures hold, Normandy would have 74.10 percent of its student body staying, while Riverview Gardens would have 75.98 percent.

Using an average tuition figure of $12,000 per student, CSD calculated that the transfers would cost Normandy $14.3 million in tuitioin plus another $1.4 million in transportation; the bill for Riverview Gardens would be $17.4 million for tuition and $2.3 million for transportation. Together, the districts would pay $35.4 million for students who want to leave.

The total includes 63 students living in Normandy and 69 students in Riverview Gardens who have not been attending public school but are still entitled to transfer under the law. 

DESE guidelines

When it became apparent that students would be transferring for the coming school year, the Department of Elementary and Secondary Education became involved in the process, issuing a set of guidelines that it stressed were purely advisory, not with the force of law. It said that districts should adopt and publish a policy on class sizes that falls between minimum recommended numbers and what is desirable.

It also said that districts eligible to be receive students under the transfer law should “post on their websites the student transfer application, the district’s admissions process and the current available enrollment slots by grade level.”

As part of the transfer process, Riverview Gardens chose Mehlville as the district to which it would pay transportation costs for its students. When Mehlville said it could not take all of the students who wanted to leave Riverview Gardens, it designated Kirkwood as a second transportation district.

The letter from the ACLU officials to the Mehlville and Kirkwood superintendents said that class-size policies had been cited as reasons for the districts to refuse to accept all of the students who wanted to transfer there. But, the letter added, “the legislature’s mandate that you accept all eligible students is unambiguous.”

The letter also noted that the districts could be found in violation of the due process clause of the U.S. Constitution.

“We are certain that your district understands the value of education,” the letter said, adding:

“We understand that there might be reasons to question the wisdom of 167.131’s requirements, some legitimate and some not, and that those requirements impose challenges on both sending and receiving districts. But Missouri law has created a property interest for parents and children who reside in school districts that have lost their accreditation and that interest cannot be disregarded, or diminished, by your district.”

It concluded by saying, “We are available to discuss this matter and discuss ways in which your district might honor the rights of the parents and children at issue.”

In an interview with the Beacon, Mittman of the ACLU said the DESE recommendation about posting admissions policies and available slots runs counter to both the wording of the law and the more recent unanimous opinion of the Supreme Court.

“We believe that the statute and the Supreme Court cases are clear,” Mittman said, “that the right to attend an accredited school as selected by a student and the student’s family rests with the students and the families, and any government action to arbitrarily limit that right is improper.

“We want to ensure that students and families who may reside in an (unaccredited) district have the opportunity to attend accredited schools.”

Mittman acknowledged that the transfer process is complicated, and “the ACLU doesn’t want to interfere with the process of seeing that it is done properly, but when the process is finalized, there shouldn’t be any family left without the opportunity to attend school in the accredited district that they want to attend.”

He said families that have questions about the process can contact the ACLU at 314-652-3111.

Asked whether he anticipates that the effort by receiving districts to limit the number of students could lead to more litigation, Mittman replied:

“I hope that would not be necessary. But the ACLU has the responsibility to protect the rights of students and their families, and we take this responsibility seriously. We want to make sure that everybody is working off the same starting point, that the rights of students and the rights of families have to be protected.”

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