JEFFERSON CITY — Earlier last week the Department of Elementary and Secondary Education (DESE) sent a letter of "guidance" regarding transfer students to school districts. The letter and attachments follow. Parts of the communiqué use the words "recommending,” "Guidance" and "Optional.” Other parts use the words "shall,” "will" and "no longer eligible.” No statutory authority exists for any of these changes.
Most troubling were the numerous misstatements of law and outright recommendations to break the law.
Below are the major problems I discovered during my review. I am currently preparing a request for an Attorney General's Opinion, as well as a request for an inquiry by the Joint Committee on Administrative Rules. Moreover, I will be consulting with staff further to see if legal action via the courts is necessary or warranted.
However, I felt it necessary to issue this statement today to advise school board members and members of the public, as DESE has demanded acceptance of its terms before June 30, 2014. This is unchartered territory, and one week's notice is not enough time to even determine if any of this is legal, much less how it might benefit or hurt the receiving districts that now must 'opt out' of DESE's scheme.
1 - The letter/attachments from DESE are legally meaningless. At best they are suggestions, at worst they are a directive to violate state law. DESE refers to the Attachment B (Guidance for Student Transfers from Unaccredited Districts to Accredited Districts) as “Guidance” and has informally called them non-binding guidance or non-regulatory guidelines. This document has existed in various forms since last June. However, the State Board adopted the “Operating Policy for Transfers from the Normandy Schools Collaborative” at its meeting on Monday.
2 – Rule-making process - if a department says "do something" or "how to do something" - it is a rule. Rules have a legal process requiring public input, notifications and other requirements to protect the public from the whims of the person writing the memo. DESE wrote a very nice letter, but it has no legal ramifications as it did not follow the rule-making process.
See Chapter 536; and also 536.010 "(6) ‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency. The term includes the amendment or repeal of an existing rule," (it goes on to list examples).
3 - DESE is actively advocating breaking the law.
a) Statute says transfers may occur if a school district "does not maintain an accredited school pursuant to the authority of the state board of education to classify schools as established in section 161.092" (Section 167.131). This part of the sentence makes it clear that the accreditation is done by the State Board of Education and references section 161.092, which, in part, states that “The State Board of Education shall…(9) Classify the public schools of the state…establish requirements for the schools of each class, and formulate rules governing the inspection and accreditation of schools preparatory to classification…”
DESE says transfers will cease because Normandy has no accreditation status. (Normandy is still not providing "an accredited school" based on State Board of Education classification via MSIP). So is DESE giving legal advice, or advocating lawlessness?
b) Statute provides a formula to calculate tuition for transferring students.
DESE provides a very different formula.
c) DESE states transferring students "should have attended the unaccredited school district". (Attachment B). "Should" is ambiguous, and "unaccredited" is used without reference to the newly introduced term 'without an accreditation status'.
Statute does not require this.
d) DESE states transfer students who didn't attend Normandy in 2012/13 school year can no longer transfer.
Statute provides no authority to do this.
e) DESE purports to limit any more transfers out of Normandy, a school with no accreditation status.
Statute states that transfers may occur when students are not provided an accredited school.
4 - DESE has a conflict of interest. Are they giving orders as DESE, or as the de facto school board of Normandy? Are they acting in the best interest of DESE, or the best interest of Normandy, or the best interests of the students? The actual lapse of the Normandy School District and the establishment of the Normandy Schools Collaborative does not take effect until July 1. Although the SBE appointed three members to the future Joint Executive Governing Board, it has not appointed its full membership.
5 - As a side note, a district without status cannot qualify for the extra monies appropriated in HB 2002 for extra tutoring, etc. The appropriations are specific to unaccredited districts or provisionally accredited districts. By inventing a new non-accreditation status, DESE has disqualified Normandy from receiving any of these extra monies to help struggling students.
6 - Likewise, DESE has disqualified Normandy from receiving any of the funds for early childhood education - specifically targeted to economically disadvantaged students. HB 1689, if signed by the governor, would allow unaccredited districts to receive state funds for early childhood education programs through the foundation formula beginning in the 2015/16 school year. Without any accreditation status, Normandy would have to wait until the formula is fully funded to begin receiving state funds (or become provisionally accredited).
