[from the SLS Watch]

The Law Suit by Susan Turk

Jefferson City — September 25 — Board of Education of the City of St. Louis versus Kent King, the Missouri State Board of Education and the Missouri Department of Elementary and Secondary Education began to be heard in Judge Richard Callahan’s second floor courtroom in the Cole County Courthouse in Jefferson City today.  The lawsuit was brought by 5 elected Board of Education members, William Purdy, Peter Downs, David Jackson, Jr., Donna Jones and Katherine Wessling.  All 5 were present for the proceedings.

The law suit was undertaken because the Missouri Department of Elementary and Secondary Education arbitrarily and capriciously applied its accreditation review rules to deliberately and unreasonably deny the SLPS provisional accreditation.  This was done in order to make it possible for the State Board of Education to declare the SLPS to be unaccredited and wrest governance from the elected Board of Education.  Prior to December 15, 2006, the date when the Danforth Freeman Special Advisory Committee on the SLPS submitted its DESE commissioned report, the SLPS was undergoing its routine annual performance review and had submitted adequate data to be awarded 5 performance standards.  It is necessary to meet 6 standards to achieve provisional accreditation.  The SLPS submitted additional data which was expected to earn the 6th standard.  But that data was subsequently rejected.  After December 15, communication between the SLPS and the DESE was quixotic and ensured that the SLPS would be unable to meet 6 standards.

There are 29 counts in the lawsuit.  Each count could provide a reason for the judge to return control of the SLPS to the elected board. Here is a summary of the counts.

1. DESE uses a booklet titled “Understanding Your Annual Performance Report” which explains the performance standards school districts must meet to be accredited.  State law requires that it be filed with the Secretary of State.  DESE hasn’t filed it.  That makes the standards invalid and unenforceable.

2. The Performance Standards are so vague and incomplete that a person of ordinary intelligence would not know what is required.  For example several standards require that the percentage of students going on to higher education or taking certain courses is “high or increasing”  High and increasing percentages are not defined.

3.The State Board’s action towards the SLPS is arbitrary and capricious.  SLPS are being treated differently than other districts such as Wellston which was given a new category of interim accreditation to prevent it from becoming financially unviable and enabling it to recover academic quality while under state supervision.

4. The governor appointed a CEO to the transitional school district on March 22 when the Senate was in session.  Because the CEO was nominated during the Senate session but not confirmed, he has no authority to act under the Constitution.  If the Court decides it was a recess appointment, the appointment is invalid because the law that created the transitional board only transfers the Board of Education’s power to a permanent CEO, not a temporary one.

5. DESE found the SLPS did not meet the performance standards for postsecondary education and career education credits taken by juniors and seniors because they showed significant improvement.  The standards require that “high and increasing” percentages of students attend post secondary programs or take career education courses.  The SLPS hired a company named National Student Clearinghouse to track students and improve the data.  DESE requested additional data going back 5 years including personal information that had never previously been required and gave a 4 week deadline.  Requests for an extension were denied.  DESE’s denial of the standard because improvement was shown and request for never before collected data going back 5 years was arbitrary and capricious.

6.Only those powers granted to the Board of Education on or before August 28, 1998 are to be transferred to the TSD.  A list of 34 powers that were granted to the Board of Education after that date remains with them. That list of powers includes setting the tax rate, collecting and expending the desegregation sales tax, appointing retirement system trustees, and purchasing all textbooks.

7. MRS 162.1100, the statute which created the TSD for the City of St. Louis,  violates Article I, section 1 of the Missouri Constitution because it replaces an elected body with an appointed body and divests the political power of the people of St. Louis.

8. MRS 162.1100 violates the equal protection clause of the Missouri Constitution because no other school board loses power immediately upon losing accreditation.  All others are given 2 years to improve before being relinquished of power.

9. MRS 162.1100 violates Article I, Section 3 of the Missouri Constitution which gives people living in a jurisdiction the right to regulate and police their own government.

10. MRS 162.1100 violates Article I, Section 10 of the Missouri Constitution because it transfers title of all property owned by the Board of Education to the TSD without due process.

11. MRS 162.1100 violates Article I, Section 13 of the Missouri Constitution because it interferes with the Board of Education’s ability to fulfill contracts to which it is a signatory such as the Desegregation Settlement Agreement.

12. MRS 162.1100 violates Article I, Section 14 of the Missouri Constitution because it exempts the Board of Education from its right of judicial review.

13. MRS 162.1100 violates the Missouri Constitution because it strips the Board of Education of property without providing a hearing or compensation.

14. MRS 162.1100 is unconstitutional because it robs the citizens of St. Louis of free exercise of the right of suffrage.  Voting is a fundamental right in Missouri.

15. MRS 162.1100 violates Article II, Section 40 of the Missouri Constitution which prohibits the General Assembly from enacting laws which create offices or prescribe the powers and duties of officers in school districts.

16.MRS 162.1100 violates Article III, Section 41 of the Missouri Constitution because it enacts a special or local law.

17. DESE superceded its constitutional authority by appointing an SAB to supervise instruction in the SLPS.  Only DESE has the constitutional authority to supervise instruction.

18. MRS 162.1100 violates Article X, Sections 1 and 2 of the Missouri Constitution because the power to tax cannot be surrendered, suspended or contracted away without amending the Constitution and the SAB would assume the Board of Education’s taxing responsibilities.

19.MRS 162.1100 violates Article X, Sections 10a, 11b and 15 regarding taxation issues.

20.  MRS 162.1100 violates Article X, Section 21 of the Missouri Constitution, the Hancock Amendment, because it creates a paid position, the CEO of the SLPS without providing an appropriation for the position.

21. Breach of contract will be caused between the Board of Education and its vendors, the superintendent and the Desegregation Settlement Agreement.

22. MRS.162.1100 interferes with the right to vote of the citizens of St. Louis because the members of the TSD are not elected and the Board of Education is stripped of power given to it by the people after an election.

23.The State Board of Education violated state law by declaring the SLPS to be unaccredited in mid-cycle and by appointing a TSD before it had lapsed.  Districts must be unaccredited for two years before they lapse. Also, the State Board did not make a determination for why the SLPS was declared unaccredited as required by law.

24. The Settlement Agreement of the Desegregation case limits the authority of the TSD and subordinates it to the Board of Education. All the programs outlined in the Settlement Agreement is the responsibility of the Board of Education and not the TSD, including full day kindergarten, summer school, the magnet schools, college prep and preschool.

25. Loss of accreditation will increase segregation in the city schools by allowing white students to transfer to county schools and is contrary to the terms of the Settlement Agreement.

26,  The Desegregation Settlement Agreement assigns the power to collect and expend its sales tax proceeds to the Board of Education.

27. The Board of Education members who are parties to the suit are being deprived of due process.

28. MRS 162.1100 vests the TSD with the school board’s power but not their obligations therefore creating ambiguity and confusion about the responsibilities of the two boards.  This makes the statute unconstitutionally vague.

29. The petitioners request a permanent injunction which would reinstate provisional accreditation and reinstate the elected Board of Education.

The trial was continued to next Tuesday, October 2 at 9:30 a.m. I suspect it will be another full day because they left off in the middle of Dr. Bourisaw’s cross examination. The State has still to present its case and there will be refutations and closing arguments.

In cross examination of Board Members Peter Downs and Katie Wessling and Supt. Bourisaw, Paul Wilson, the state’s attorney, attempted to undermine their credibility. Wilson asked Downs and Wessling if they had a background or credentials in education, pointedly remarking that their criticism of policies implemented by the previous school board (created by such flawlessly credentialed experts as Bill Roberti among others) were mere layman’s opinions. Wilson also asked questions about whether Downs and Wessling thought the mayor and governor were plotting against the SLPS, insinuating that they were nutty conspiracy theorists.

Both Downs and Wessling came across as very credible witnesses, however.

Dr. Bourisaw was treated much more harshly by the state and SAB attorneys and she is not finished. They tried to make her out to be either incompetent or a liar, disputing her claim that DESE did not inform her that they were doing a full accreditation review until just before the March 2007 state board meeting. It got quite ugly. But although she looked tired and had to be prompted from her deposition at times, she held up under a blistering barrage of questions.

One of the attorneys rephrased a question 5 or 6 different ways trying to get her to admit that former Board President Veronica O’Brien prevented her from doing her job or interfered with her effort to improve education in the district last year, the inference being that the elected board was not functioning and the state was justified in the take over. Dr. Bourisaw never replied affirmatively to these questions. The most she admitted was that O’Brien’s demand for information and refusal to sign contracts were “time consuming”.

The State is going to have at least 2 witnesses, DESE’s Becky Kemna and State Board of Education Member Peter Herschend. They both testified at the temporary injunction hearing in June and were successful then in convincing the judge that the state’s actions were justified. But there was less evidence allowed to counter their testimony at the injunction hearing.

I hope everyone reading this has made a contribution to the legal defense fund. It is still about $6,000 short of the $40,000 goal. And unfortunately that was a low ball assumption of the cost of the trial. It has gone over that. The address is;


P.O. BOX 21642,

ST. LOUIS, MO. 63109-0642.