Missouri's school transfer law: not a Hancock violation but a mere bandage on wounded districts.

• Author: Hubbard, Kimberly
• Position: NOTE

Breitenfeld v. School District of Clayton, 399 S.W.3d 816 (Mo. 2013) (en banc)

1. Introduction

   In December of 2013, three school districts in Missouri were unaccredited: Kansas City Public Schools, the Normandy School District, and the Riverview Gardens School District. (1) As of August 2014, (2) the Saint Louis Public School District ("SLPS") had provisional accreditation. (3) SLPS is the district involved in the litigation that is the subject of this Note. Ten other Missouri school districts also had provisional accreditation in July of 2013. (4)

   There is a law in Missouri--Missouri Revised Statutes Section 167.131 --that allows students from an unaccredited school district to transfer to an accredited school district, while having their tuition and transportation costs paid for by the unaccredited school district. (5) Students transferring from unaccredited to accredited school districts pursuant to the transfer statute may be rewarded with a better educational experience in the accredited district; however, there are many injurious consequences of the statute. These consequences negatively affect students who have used or will use the transfer statute to transfer districts, (6) accredited districts that receive transfer students, (7) the accreditation system that is used to assess Missouri school districts' performance, (8) and, most of all, unaccredited districts that lose students because of the transfer law. (9)

   In Breitenfeld v. School District of Clayton, a parent of students residing in the SLPS District brought suit to enforce the transfer law so that her children could attend the neighboring accredited Clayton School District ("Clayton") using tuition paid for by SLPS. (10) Both SLPS and Clayton argued a defense to the enforceability of the law on the theory of impossibility--that it would be "impossible" for the districts to comply with the law because Clayton could not provide the necessary resources for the transfer students and SLPS could not afford to pay the tuition costs for transfer students. (11) Taxpayers from both SLPS and Clayton intervened to argue that the statute created an unfunded mandate in violation of the Hancock Amendment of the Missouri Constitution. (12) The court upheld the law, rejecting the defense of impossibility and holding that the law did not violate the Hancock Amendment. (13)

   This Note first discusses the Breitenfeld decision and then explores the prior cases and legislation leading up to the Breitenfeld decision. In discussing Breitenfeld, this Note describes how the transfer law will affect transferred students, unaccredited districts forced to pay tuition, accredited districts forced to accept transfer students, and the public school accreditation system in Missouri. Finally, this Note proposes that because the adverse consequences outweigh the benefits of the law, action must be taken so that unaccredited school districts can have a fighting chance to become accredited again. Legislative change is necessary because a solution is not forthcoming from the Supreme Court of Missouri, as the court recently affirmed its Breitenfeld holding in Blue Springs R-IV School District v. School District of Kansas City. (14) This ruling confirms that attempting to solve the problems the transfer law causes by challenging the law under the Hancock Amendment will be unsuccessful. (15) Proposed in this Note are two other possible options: that lawmakers amend or repeal the law or that administrators change the Missouri accreditation system.

2. Facts and Holding

   SLPS (16) became unaccredited in 2007. (17) The plaintiff, Gina Breitenfeld, (18) and her two children resided in the SLPS district, but the children had never attended SLPS schools. (19) For the duration of the Breitenfeld children's education, they attended private schools. (20) However, Breitenfeld enrolled her children in Clayton for the 2007-2008 school year pursuant to a tuition agreement between herself and Clayton. (21) After SLPS became unaccredited, Breitenfeld sought payment of tuition by SLPS to Clayton under the transfer law for educating her children during the 2009-2012 school years. (22) The Breitenfelds lived in Clayton for a portion of the time period between 2009 and 2012; however, they resided in the SLPS District for a portion of that time period as well and still owed Clayton tuition for the 2009-2012 school years. (23) When SLPS and Clayton refused to fulfill the obligations under Section 167.131, Breitenfeld initiated this litigation. (24)

   SLPS and Clayton objected to the enforcement of the transfer statute, and Clayton counterclaimed against Breitenfeld for the payment of tuition costs. (25) Taxpayers from Clayton and one taxpayer from SLPS were allowed to intervene in the case by the lower court in order to represent the position that the transfer statute violated the Hancock Amendment of the Missouri Constitution because it was an "unfunded mandate." (26) An unfunded mandate occurs when the state government requires the local government to undertake any new or increased activities without providing the funding for those activities. (27) The Hancock Amendment prohibits the state government from doing this. (28) In response to the contention that the transfer statute violated the Hancock Amendment, Breitenfeld argued that the transfer statute "[did] not create a new or increased activity or service within the meaning of the Hancock Amendment" and therefore was constitutional and should be enforced. (29)

   Both SLPS and Clayton raised the defense of "impossibility of compliance" as the basis for which they should have been allowed to disregard the transfer statute. (30) The school districts introduced evidence of their operation costs of complying with the transfer statute based on the Jones Report, "a 2011 statistical study estimating the likelihood that students would transfer under [the transfer statute] from the unaccredited SLPS to certain adjoining St. Louis County school districts." (31) The report was used in lieu of data based on actual transfers under the statute because no "transfers from SLPS to an accredited school district in St Louis County actually had occurred." (32)

   Relying on Jones Report data, the SLPS superintendent testified "that the estimated [S]ection 167.131 tuition and transportation costs for the student transfers ... could be as high as $262 million." (33) According to the superintendent, these estimated transfers would make it "impossible for SLPS to maintain or improve its current attendance and academic achievements and adequately educate remaining students." (34) The Jones Report estimates also worried Clayton officials because, as one Clayton administrator testified, the school district would more than double in size with the estimated transfers making it "impossible without years of advance planning and construction to accommodate the 3,567 transfer students that the Jones Report estimated would enroll in Clayton." (35)

   The trial court agreed with the taxpayer interveners, finding "that [S]ection 167.131 was unenforceable as to the defendant school districts because it was an 'unfunded mandate' in violation of the Hancock Amendment." (36) In holding that the transfer statute violated the Hancock Amendment, the lower court said the statute "created new and increased activity or service for school districts over and above what was required in 1980." (37) The trial court also agreed with the defendant school districts that it would be "impossible" for them to comply with the statute. (38) Judgment was entered in favor of Clayton against Breitenfeld on the claim of unpaid tuition owed by Breitenfeld to educate her children totaling $49,133.33. (39)

   The Supreme Court of Missouri reversed the trial court's decision. (40) It held that the transfer statute did not violate the Hancock Amendment and determined that the defense of impossibility was not available to the defendant school districts in this case. (41)

   The court held that under Section 167.131 if a school district was required to provide only a "greater frequency" of existing activities or services and not new services or an increased level of services, the statute did not violate the Hancock Amendment if the district could not prove that the mandate was unfunded beyond speculative evidence. (42) The court reasoned that because SLPS had received provisional accreditation, the situation would not reach the '"impossibilities' claimed by the defendant school districts," which involved thousands of students. (43) Therefore, the defense of impossibility was not available to the school districts, (44) and the districts were required to comply with Section 167.131. (45)

   The court remanded the case to the trial court, ordering the trial court to recalculate the amount of tuition SLPS owed Clayton according to the formula in the transfer statute. (46) At the close of the litigation, the Breitenfeld children continued to attend Clayton. (47)

   Following the ruling in Breitenfeld, an unaccredited school district in Missouri must pay tuition for its students to attend an accredited district, and accredited districts must accept students transferring from unaccredited districts because the law requiring the districts to do so is constitutional. (48)

3. Legal Background

   This Part first discusses the transfer statute and its history. It then explains the Hancock Amendment of the Missouri Constitution. Finally, it delves into various challenges previously brought against the transfer statute on several grounds.

   1. Transfer Statute: Section 167.131

      Section 167.131 was originally enacted in 1931 (49) and as of 1980--a date that is important for Hancock Amendment reasons (50)--the statute addressed only Missouri school districts that educated students between kindergarten and eighth grade. (51) A 1993 revision of the statute changed the language slightly, (52) resulting in two important consequences: the statute no longer...