A child born in the summer of 2007, when attorney Elkin Kistner first filed a lawsuit against the Clayton and St. Louis city school districts, could be entering second grade this month.
If that child lived within the borders of the Normandy School District, the student still would not be certain of which school to attend school this week, even though the case was meant to ensure that students in unaccredited districts would have the opportunity to transfer to an accredited school, in the same or adjacent county.
The most recent uncertainties concerning the case might be clarified this week, at least temporarily, in Division 16 of the Circuit Court of St. Louis County. Judge Michael Burton is expected to rule on whether students living within the Normandy district have the right to transfer to accredited districts. About 1,000 of those students attended schools in other districts during the past school year, but that right has been clouded by the state’s takeover of Normandy, the resulting confusion about its accreditation status, and conflicting state-issued guidelines about the eligibility to transfer for any or all Normandy resident students.
Recently, the state has had more flip-flops than a Florida beach during spring break.
For the 2013–2014 academic year, students living in the unaccredited school districts of Normandy and Riverview Gardens were allowed to transfer to schools in accredited districts within St. Louis County and adjoining counties. That right had been upheld by two Missouri Supreme Court rulings, in 2010 and 2013, based on statute 167.131, which states that students living in unaccredited districts can transfer to accredited schools in other districts.
Then, on June 17, the Missouri Department of Elementary and Secondary Education issued guidelines stating that students who lived in Normandy but had not attended unaccredited public schools in that district could not transfer. That primarily meant students who had attended private schools within the Normandy boundaries were banned from transferring. On July 18, DESE flipped and issued guidelines stating that former private and parochial school students could transfer as well.
DESE spokesperson Sarah Potter said the state board of education decided in June to exclude those students to save money. The receiving school district is paid a tuition fee from Normandy for each student it accepts. About 50 percent of the Normandy School District budget consists of state funds, and 10 percent is federal funding. “The guidelines had excluded students who had not previously attended Normandy in the 2012–13 school year,” Potter stated in an email reply to questions. “The Board was considering budget options and excluded those students due to budget constraints.”
Kistner believes the initial exclusion of this group was yet another example of the education establishment trying to limit its adherence to state statute 167.131. “That was nonsense,” says Kistner. “Nobody wants to live by the statute, even though the Supreme Court has not once but twice reminded everybody that it’s the law.”
Joshua Schindler, an attorney for the Children’s Education Alliance of Missouri, filed suit on behalf of plaintiffs with children who had attended non-public schools in Normandy. CEAM’s legal intervention was spurred by DESE’s initial exclusion of those students from the transfer program, but it also sought the right to transfer for all Normandy resident students.
“You could have spent 15 years as a resident of Normandy, but if you made a decision to pay for a private or parochial school, you are going to be penalized for that,” Schindler says. “So we filed suit for both groups.”
The intervention by CEAM, an organization that is underwritten by billionaire political activist Rex Sinquefield, marks the first time that Sinquefield has become directly involved in student-transfer litigation. CEAM was active in lobbying the state legislature in support of school choice, including vouchers. That DESE intended to preclude private-school students from the transfer program likely gave CEAM added incentive to enter the litigation.
The other flip by the state concerned Normandy’s accreditation status. The state took over Normandy when the school district became insolvent, due in large part to payments it made to other school districts to compensate for enrolling transfer students.
At first, DESE said the new Normandy district would have no accreditation status. But on August 1, it said an omission in the board of education’s June meeting minutes left out the fact that the new “collaborative” had been deemed accredited.
Consistent through the changing guidelines was DESE’s decision to advise accredited districts that they could refuse to take students from Normandy. Francis Howell School District, which had accepted about 475 Normandy students for the 2013–14 school year, mainly because bus transportation costs were covered, decided to not accept any Normandy students this year. About 350 students had applied to return this year.
School boards in some districts decided to continue accepting transfers from Normandy, while other districts opted out. University City, for example, first decided not to take Normandy students and then reversed its decision. Ritenour, Pattonville, and Francis Howell have declined to take Normandy students.
Both Schindler and Kistner are skeptical of DESE’s claim about the need to amend the state board of education’s June meeting minutes. The state board met on June 16, Schindler points out, and it was reported that Normandy would have no accreditation status for three years due to the state takeover. Then, on July 14, CEAM and Schindler filed their petition to the court, attempting to get the transfers from Normandy to continue. On August 1, the state said the June meeting’s minutes needed to be revised to note that Normandy is accredited.
“If you are going to take a district with the lowest scores in the state, and you’re going to accredit it, then you should be willing to go door to door and explain why you are doing it,” Schindler says. “This is cowardice. You’re changing minutes. Then, when you change them, you make up some absolutely lame explanation that you submitted the wrong minutes.” For DESE to claim a “scrivener’s error” as the reason for this confusion is “crazy” and “revisionist history,” Kistner adds.
For Kistner, the state taking over Normandy, making reforms, and changing the name to the Normandy Schools Collaborative does not change the fact that the district is not accredited and that its residents have the right to send their children to an accredited district. “The state is either lying, or it’s so confused it should be put in a sanatorium,” he says.
Kistner is taking new legal action on behalf of plaintiffs whose Normandy children had attended schools in Clayton and Brentwood. Those districts have decided to take students from Normandy, but Kistner wants some assurance of continuity. In a July 30 letter to the Brentwood and Clayton districts, he wrote that the involved school districts “are governed and bound in this matter not by DESE’s frequently changing policies (which have no legal basis) but by the straightforward statutory obligations of 167.131.” A hearing on Kistner’s motion to intervene on behalf of his four new plaintiffs from Normandy is scheduled for August 19.
“Look at the history since 2007,” Kistner says. “There is no certainty. It is ephemeral and unreliable. The districts and DESE don’t get it. They turn on a dime, depending on which way the wind is blowing. These parents should be entitled to some confidence that this statute is going to be respected... The guidelines are not what has to be followed. It’s the statute.”
Over the seven-year length of the suit, Kistner says he met twice with advocates affiliated with Sinquefield, and on both occasions they decided not to become involved in the litigation or to offer financial support. CEAM didn't get involved earlier, Schindler says, “because, frankly, it was being handled" by Kistner. Schindler did draft a petition and a restraining order in 2013, when it appeared that districts were resisting the first implementation of the transfer program, he says, but ultimately did not file them because “there were tremendous efforts by many people” to make the program work. But because DESE told districts they could opt out of taking Normandy students and because of the earlier exclusion of students who had attended private schools, Schindler and CEAM decided to enter the courtroom this summer.
During the lawsuit’s seven-year duration, it seems that Kistner won the war at the Supreme Court level twice, yet continues to lose the battle on the ground, at the implementation level of the districts. Kistner did receive legal support from the state attorney general’s staff when the case went to the Supreme Court the second time, because the Supreme Court’s first ruling was being appealed and the attorney general’s staff was acting on behalf of the state. Other than that, Kistner has been on his own. During the first run-up to the Supreme Court, the Clayton and St. Louis city school districts spent more than $1 million in legal fees.
“If you think, 'Who is going to outlast who?', one side has all the money,” Kistner said. “Unless you get someone like Sinquefeld popping up.”
