The Clayton School District’s decision to seek a $24,000 judgment against the last plaintiff in the Turner case has triggered a legal challenge that has the potential to widen the current inter-district transfer program in St. Louis County. The program would then include the provisionally accredited districts of the city of St. Louis and Jennings.
The latest chapter in the landmark Turner case begins Tuesday at a hearing in the courtroom of St. Louis County Court Judge David Lee Vincent. The Clayton School District seeks money it says Gina Breitenfeld owes the district for sending her two daughters to Glenridge Elementary School during the 2012-13 school year, after the city schools had been granted provisional accreditation.
The Clayton School District also seeks more than $100,000 from the St. Louis School District for the time the Breitenfeld children attended a Clayton school while the city district was unaccredited. Attorneys for the city school district contest that claim.
In opposing Clayton’s motion for a summary judgment against his client, Breitenfeld’s attorney, Elkin Kistner, contends that the provisional accreditation status the city school district achieved in October 2012 does not exempt it from Missouri state statute 167.131. That statute is the basis for the inter-district transfer program, which allows about 2,000 students from the unaccredited Normandy and Riverview Gardens districts to attend schools in accredited districts.
Breitenfeld, along with Jane Turner, was one of the original plaintiffs in the Turner case, first filed in 2007. Their suit claimed that according to the statute, residents of unaccredited school districts should be able to send their children to schools in accredited districts in the same or an adjoining county, and the unaccredited district would then have to pay the cost. Breitenfeld, Turner, and others had been paying tuition so their children could attend Clayton schools. Clayton said it was not required to accept the children without that tuition.
In the Turner case, two school districts, Clayton and city of St. Louis, were the defendants. They spent more than a $1 million in legal fees for an unsuccessful six-year defense. The Missouri Supreme Court ruled in the plaintiff’s favor in 2010. But it remanded the case to Judge Vincent’s court for further action, which delayed implementation. By the time the Missouri Supreme Court ruled in 2013 (7-0, again in the plaintiffs’ favor), the city schools had been granted provisional accreditation, and the ruling only affected students living in the Normandy and Riverview Gardens districts.
Now, if the court upholds Kistner’s claim that provisional accreditation doesn’t exempt the city public schools from the reach of the statute, any school-age student in the city will have the option of transferring. Jennings and the city of St. Louis are the only two local districts that are provisionally accredited. Statewide, nine other districts have provisional accreditation.
Richard Walsh, an attorney representing the St. Louis School District, views Kistner’s claim as an “absurdity” because in 2013, the Supreme Court ruled that the city schools were not affected by 167.131. “Elkin Kistner’s latest Don Quixote march, trying to involve another 26,000 or 52,000 kids over a battle for a few thousand dollars—I would view that as an absurdity,” Walsh says.
Currently about 27,000 students are enrolled in city public schools, though when children in charter schools, private Catholic schools, and desegregation transfer students are included, the number rises to roughly 48,000. (For a child to be eligible to transfer from an unaccredited district, that student needs to live within the district, but need not be enrolled in a public school.)
Clayton spokesman Chris Tennill believes that according to the Supreme Court’s 2013 decision, provisional accreditation “does not trigger the statute.” He also says this upcoming court action is not about the transfer issue. “We’re just trying to resolve an issue of tuition payment. The Supreme Court has resolved the transfer issue; that’s been done since June of 2013. This hearing that is coming up is just about the outstanding tuition amounts owed by the St. Louis Public Schools and the Breitenfelds. The larger transfer issue is done.”
Kistner admits his current filing is different from what he alleged in 2007, when the Turner case started. From the beginning, he viewed his challenge to Clayton as an “open and shut” case, even though it took six years and two Missouri Supreme Court rulings in his favor to give children residing in unaccredited districts the right and the ability to attend schools in accredited districts.
Kistner is not nearly as certain of his chances in this challenge, but he is not giving up. “If I were on the other side, I would obviously be hammering that the Supreme Court already decided this. The question is, did it really decide it in a way that is binding for the future? A later court, or the same court, could go back and revisit the issue when it has been squarely presented by the parties.”
In his response to Clayton’s claim for summary judgment, he cites at least five Missouri statutes that distinguish between accredited, provisionally accredited and unaccredited school districts.
“When the General Assembly talks about accreditation, it knows how to use the phrase ‘provisional accreditation’ in a meaningful way,” Kistner says. “The omission of that phrase in connection with 167.131 is a meaningful omission. Statute 167.131 says if you live in a district that is not accredited—the St. Louis Public School District is not accredited, it’s provisionally accredited. The status of provisional accreditation does not qualify the city school district to be exempt from 167.131.”
Though Kistner has proposed this theory before, he says he probably would not have pursued it if Clayton had not gone after the $24,000 in what it claims is back tuition. “Any doubt in my mind was resolved by the fact that they asserted this claim. It put us in a position where we had no choice but to do it,” Kistner says. “As an abstract proposition, their claim is not offensive; it’s the way they are doing it and the fact that they’ve chosen to do it I find astounding. Just because you have a claim doesn’t mean you pursue it.”
A law professor who spoke on the condition of anonymity viewed Clayton’s decision to seek money from Breitenfeld as “punitive,” a warning against others who might sue a school district. Tennill denied that charge, saying, “If it were punitive, we’d just be going after the Breitenfelds and leave St. Louis public schools alone. We’re following up on both aspects of it.”
Kistner says that in 2012, Breitenfeld had already enrolled her daughters in a Catholic school in the city when she was contacted by Clayton school personnel. They asked if her daughters would return to Glenridge Elementary. At that time, Kistner believed Clayton wanted the children to stay in a Clayton school so the suit could be settled. (They did return to Glenridge, which they currently attend.)
“The perverse irony is that the Clayton School District and all of its allies—the entire universe of school districts and their hangers on—for them, Breitenfeld was the ‘last man standing,’” Kistner says. “She in a perverse way was the unwitting champion of their cause. It was on her back they obtained a ruling from Judge Vincent that the statute was unconstitutional. So in a weird way, everybody wanted to make sure that she continued her claim.”
Clayton’s Tennill denies that Breitenfeld’s children were coaxed to stay in Clayton schools because of the lawsuit. “Her students were enrolled in Clayton and had not shown up, nor had we received any information that they had transferred to a different school. We do that with any kids we expected to be here and don’t show up, because we have an obligation to make sure they are in school somewhere.”
Other lingering issues in the Turner case include possible compensation for Turner and others who paid tuition to Clayton while city schools were unaccredited. Legal action could be taken to recover that expense from the city school district. “There is no reason they had to pay that. The only reason they did was because of the complicity of the St. Louis School District and the Clayton School District in denying them their legal rights,” Kistner says. “The school districts weren’t following the law, and it took the Supreme Court to educate everybody.”
In the end, it is up to the court to define “provisional accreditation” and decide whether to exempt school districts from the transfer program. Kistner says the statue is “very clear” for unaccredited districts. He is less sure of his current claim.
“Do I have as much confidence in this? No. But this is why courts exist. People have to be told who is right and who is wrong.”
