The Fight about Student Transfers under
Mo. Rev. Stat. § 167.131 and Kansas City Area Schools
By Duane Martin 1
I.
Introduction
In September 2011, the Missouri State Board of Education reclassified the School
District of Kansas City, Missouri (“KCPS”) as unaccredited effective January 1, 2012. This decision brought into sharp focus for Kansas City Missouri area public school districts an ongoing controversy regarding the requirements for student transfers from unaccredited school districts under Missouri law. Pursuant to Mo. Rev. Stat. § 167.131, unaccredited school districts, such as KCPS, are required to “pay the tuition of and provide transportation consistent with the provisions of section 167.241 for each pupil resident therein who attends an accredited school in another district of the same or an adjoining county.” Mo. Rev. Stat. § 167.131.1. Following the tuition payment and arrangement of transportation, accredited school districts are required to admit and educate non-resident students who choose to transfer.
On December 21, 2011, KCPS adopted a Board of Education policy concerning the transfer of its students to accredited districts (the “Transfer Policy” or the “Policy”). Under its
Transfer Policy, KCPS has declared that it will not pay tuition or provide transportation as required by the statute. Rather, the Policy requires the surrounding accredited districts to advance education costs and transportation services to KCPS without any assurance that they will be reimbursed in full by KCPS.
1 The author represents the five accredited school districts and their taxpayers in the pending litigation against the Kansas City Missouri School District and the State of Missouri discussed in this article.

On December 23, 2011, five accredited school districts including Blue Springs,
Independence, Lee’s Summit, North Kansas City and Raytown, and taxpayers from each of these districts, filed suit against KCPS. These districts (“Accredited Districts”) claim that the KCPS
Transfer Policy violates state law. On January 20, 2012, the State of Missouri was added as a defendant in the case based on the State’s requirement that the accredited districts accept student transfers without full State financing. The taxpayer plaintiffs claim that this requirement constitutes an unfunded mandate and violates the Hancock Amendment to the Missouri
Constitution.
II.
Background Concerning the 1993 Amendments to Mo. Rev. Stat. § 167.131
Under the current version of Mo. Rev. Stat. § 167.131, unaccredited districts must pay the tuition of and provide transportation for students who choose to transfer to an accredited school. Upon receipt of the tuition payment specified in the statute and the arrangement of transportation, accredited school districts must admit and educate non-resident students of all grade levels who reside in an unaccredited district. Mo. Rev. Stat. § 167.131 did not always require accredited school districts to admit and educate students of all grade levels who reside in an unaccredited district. The legislature amended Mo. Rev. Stat. § 167.131 in 1993 and significantly expanded the statute’s application.
Before the 1993 amendments, the statute read:
1. The board of education of each district in this state that does not maintain an approved high school offering work through the twelfth grade shall pay the tuition of each pupil resident therein who has completed the work of the highest grade offered in the schools of the district and who attends an approved high school in another district of the same or an adjoining county, or an approved high school maintained in connection with one of the state institutions of higher learning, where work of one or more higher grades is offered.
2. The rate of tuition to be charged by the district attended and paid by the sending district is the per pupil cost of maintaining the high school attended. The cost of maintaining the high school attended shall be determined by the board of education of the
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district but in no case shall it exceed all amounts spent for teachers’ wages, incidental purposes, debt service, maintenance and replacements. The term “debt service”, as used in this section, means expenditures for the retirement of bonded indebtedness and expenditures for interest on bonded indebtedness. Per pupil cost of the school attended shall be determined by dividing the cost of maintaining the high school by the average daily high school pupil attendance. If there is disagreement as to the amount of tuition to be paid, the facts shall be submitted to the state board of education, and its decision in the matter shall be final. Subject to the limitations of this section, each pupil shall be free to attend the school of his or her choice; but no school shall be required to admit any pupil .
Mo. Rev. Stat. § 167.131 (1974) (emphasis supplied).
The pre-1993 version of the statute provided that a high school student residing in a school district without an “approved high school” could attend high school in an adjoining school district. The statute addressed the problem of rural K-8 districts that do not have high schools. In 1993, the legislature removed the statute’s reference to “approved high schools” and replaced that term with “accredited school.” Perhaps most significantly, the legislature also removed the phrase “but no school shall be required to admit any pupil.”
The substantial problems caused by the 1993 amendments first came to light in 2007 when the St. Louis Public School District lost its accreditation. Parents residing in that District took the position that their children could attend school in any surrounding accredited school district pursuant to Mo. Rev. Stat. § 167.131.
See Turner v. Sch. Dist. of Clayton , 318 S.W.3d
660 (Mo. 2010); see also King-William v. Webster Groves , Case No. SC92125, currently pending before the Supreme Court of Missouri.
The Missouri Department of Elementary and Secondary Education (“DESE”) issued official statements in response to confusion concerning the responsibilities of the St. Louis
Public School District and surrounding accredited districts under Mo. Rev. Stat. § 167.131.
DESE interpreted the statute as giving accredited school districts discretion on whether to admit non-resident students. In March 2007, DESE issued a document titled “What Happens When a
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School District Becomes Unaccredited”, which stated that accredited districts “may accept or reject transfer students from an unaccredited district.” On April 6, 2007, DESE issued another document titled “Questions & Answers about the Status of the St. Louis Public Schools and
Student-Transfer Issues.” That document stated: “Accredited districts . . . have the authority to accept or reject nonresident students based on their own policies and on their capacity.”
DESE’s interpretation of Mo. Rev. Stat. § 167.131 was rejected by the Missouri Supreme
Court. In a 2010 opinion, the Missouri Supreme Court held that Mo. Rev. Stat. § 167.131 requires accredited school districts to accept all students from unaccredited school districts who seek admission. Turner v. Sch. Dist. of Clayton , 318 S.W.3d 660 (Mo. 2010) (stating that the
“plain and ordinary meaning of the language in § 167.131.2 . . . requires the chosen school to accept the pupil” and that “§ 167.131.2 does not give an accredited school chosen by a student discretion to deny admission to that student.”).
Presumably, under the Supreme Court’s interpretation of Mo. Rev. Stat. § 167.131, accredited school districts may not exercise discretion in admitting non-resident students from unaccredited school districts for any reason, including financial constraints, building and classroom constraints, lack of capacity, lack of sufficient numbers of staff and teachers, and safety concerns. While these justifications for denial of admission were not expressly addressed by the Supreme Court, Justice Breckenridge opined in her dissent that, under the majority’s opinion, accredited school districts are “required to accept pupils from [unaccredited] school district[s] even if the number of pupils seeking admittance exceeded their capacity or if
[accredited districts] have difficulty collecting tuition payments from [unaccredited school districts].” Turner , 318 S.W.3d at 675 (Breckenridge, J., dissenting). Significantly, because the
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trial court ruling on appeal in the Turner case did not deal with all the issues in the case, the
Hancock Amendment implications were not addressed by the Missouri Supreme Court.
III.
The Hancock Amendment and Mo. Rev. Stat. § 167.131
The Hancock Amendment prohibits the State from imposing new or expanded activities on political subdivisions after the enactment of the Amendment (1980) without a specific appropriation, thereby creating an unfunded mandate. More specifically, the Hancock
Amendment prohibits the State from “requiring any new or expanded activities by . . . political subdivisions without full state financing.” Mo. Con. Art. X, § 16. Where the State requires a political subdivision to implement a “new activity or service” or to increase the level of a current activity or service, the State must make and disburse a specific appropriation. Mo. Con. Art. X,
§ 21. No State appropriation has been made and disbursed to fully fund the additional expenses that the Accredited Districts will incur due to the transfer of non-resident students from KCPS pursuant to Mo. Rev. Stat. § 167.131.
At the time of the passage of the Hancock Amendment, Mo. Rev. Stat. § 167.131 stated that high school students residing in a school district without a high school (a “K-8 district”) could seek admission to a school district with a high school (a “K-12 district”). The statute stated that “no school shall be required to admit any pupil.” In 1993, Mo. Rev. Stat. § 167.131 was amended. The 1993 amendments removed accredited school districts’ discretion to deny admission of non-resident students from unaccredited districts.
2
The amendments mandated for the first time that accredited school districts admit non-resident students at all grade levels from unaccredited school districts (not just K-8 districts) who choose to transfer.
2 See Turner v. Sch. Dist. of Clayton , 318 S.W.3d 660 (Mo. 2010).
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The current version of the statute imposes significant new and expanded activities on
Missouri public school districts that were not required at the time of the passage of the Hancock
Amendment. The State of Missouri has not provided financing for complying with the requirements of these expanded activities. Accordingly, the taxpayer plaintiffs in the lawsuit claim that Mo. Rev. Stat. § 167.131 violates the Hancock Amendment’s prohibition on unfunded mandates.
IV.
The KCPS Transfer Policy and Mo. Rev. Stat. § 167.131
On December 21, 2011, the KCPS’s Board of Education adopted its Transfer Policy concerning the transfer of its students to accredited districts. Under the Transfer Policy, KCPS will not pay tuition or provide transportation as required by the statute. Rather, the Policy requires the Accredited Districts to advance education costs and transportation services to KCPS without any assurance that they will be reimbursed in full by KCPS.
Under its Transfer Policy, KCPS refuses to pay tuition to the Accredited Districts in the amount determined by the Accredited Districts’ Boards of Education as required by Mo. Rev.
Stat. § 167.131. Instead, under KCPS’s Transfer Policy, the Accredited Districts must send a tuition “request” to KCPS after a KCPS student is admitted. If KCPS does not agree with the amount of the tuition determined by the Accredited Districts’ Boards of Education, KCPS will only pay its per pupil average daily attendance (“ADA”) state allocation ($3,733), even in cases where KCPS acknowledges that the appropriate amount of tuition is much higher. KCPS’s
Transfer Policy states that it will make monthly tuition reimbursements after there is an agreement as to the amount to be paid. This payment method is contrary to the Accredited
Districts’ tuition policies, which require a complete tuition payment before a non-resident student is admitted. If KCPS’s Transfer Policy is followed as written, then the Accredited
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Districts will effectively become a lender to KCPS, and taxpayers of the Accredited Districts will be forced to bear the costs involved in lending KCPS money for tuition payments and the risk of non-payment.
The KCPS Transfer Policy also limits pupil residents who may transfer to only those students who have “been enrolled in kindergarten through twelfth grade and have attended a
KCPS school for the two academic semesters immediately preceding the request for a transfer from the KCPS.” The Policy thus precludes thousands of pupil residents from transferring to an accredited school. If the Accredited Districts admit these pupil residents of KCPS without an upfront payment of tuition, the Accredited Districts will not be paid under the KCPS Transfer
Policy.
Furthermore, KCPS’s Transfer Policy states that it will not provide transportation to any accredited school. Rather, it will only reimburse four school districts of its choosing for transportation costs. The four selected school districts are thus required to provide transportation to KCPS students in the hopes of getting reimbursed, while other surrounding school districts are required under the Transfer Policy to provide transportation to KCPS students without any reimbursement.
V.
Potential Impact on Kansas City Missouri Suburban Schools
The resolution of the current dispute, and other cases pending in Missouri courts involving similar issues, could have a profound impact on Kansas City area schools. If the courts determine that Mo. Rev. Stat. § 167.131 does not violate the Hancock Amendment, districts in Jackson and all adjoining counties will be required to accept transferring students from the unaccredited KCPS. The receiving districts may be immediately accountable for such students’ performance even though the receiving district has not been responsible for educating
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such students to date. The receiving districts will also bear the responsibility of increasing staffing and classroom capacity to accommodate significant numbers of new students without the required resources being provided by the State. Furthermore, it will be difficult to gauge the numbers of student transfers for planning purposes, and students may have discretion to transfer in and out of the district on a regular basis. Because Mo. Rev. Stat. § 167.131 does not clearly delineate the rights and responsibilities of the receiving and sending districts, the potential for disputes regarding their respective obligations are likely to continue into the foreseeable future.
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