Turner v. School District of Clayton

PATRICIA BRECKENRIDGE, Judge,

concurring in part and dissenting in part.

I concur with the majority opinion’s conclusion that section 167.1311 applies to the transitional school district for the City of St. Louis. I further agree that the parents are required to pay their children’s tuition for any school years covered by | their tuition agreements and that the parents are not entitled to restitution of the I tuition paid under those agreements. However, I disagree with the majority! opinion’s conclusion that section 167.1311 compels the Clayton school district to admit the children and, instead, believe thatl section 167.020 gives the Clayton school district discretion in admitting the children. I would affirm the trial court’s! judgment in favor of the Clayton schoo)| district.

The majority opinion holds that the, plain and ordinary language in sectior *671167.131.2 stating that “each pupil shall be free to attend the public school of his or her choice” gives the pupil the unfettered choice to attend an accredited school in an adjoining district and requires the chosen school to accept the pupil. The majority opinion reaches its conclusion by reading the language that gives the pupil a choice of school in isolation rather than by reading such language in the context of section 167.131 as a whole. As addressed below, when the choice-of-school language is read in context, there are limitations imposed on the pupil’s choice.

Additionally, because the majority opinion considers the language in section 167.131 to be clear, it questions whether the Court even should consider section 167.020 when interpreting section 167.131. Even assuming arguendo that the language in section 167.131.2 clearly requires a school to admit pupils seeking admission pursuant 167.131, it nevertheless remains that when “two statutory provisions covering the same subject matter are unambiguous standing separately but are in conflict when examined together, [this Court] must attempt to harmonize them and give them both effect.” S. Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d 659, 666 (Mo. banc 2009). As discussed below, the majority’s interpretation of section 167.131 brings the statute into conflict with section 167.020 and, therefore, the Court must attempt to harmonize the two provisions.

Section 167.020 was adopted by the General Assembly in 1996 as part of a bill commonly known as ,;he “Safe Schools Act.”2 1996 Mo. Legis. Serv. H.B. Nos. 1301 & 1298. Section 167.020 comprehensively governs when pupils can register to attend school in a district. Section 167.020 establishes the circumstances under which a district is compelled to admit a pupil and when a district’s school board has discretion whether to admit a nonresident pupil. Section 167.020.3, .6.

Section 167.020 reads, in relevant part:

2. In order to register a pupil, the parents or legal guardian of the pupil or the pupil himself or herself shall provide, at the time of registration, one of the following:
(1) Proof of residency in the district. ...; or
(2) Proof that the person registering the student has requested a waiver under subsection 3 of this section within the last forty-five days....
3. Any person subject to the requirements of subsection 2 of this section may request a waiver from the district board of any of those requirements on the basis of hardship or good cause.... [T]he board shall convene a hearing as soon as possible, but no later than forty-five days after receipt of the waiver request made under this subsection or the waiver request shall be granted. The district board or committee of the board may grant the request for a waiver of any requirement of subsection 2 of *672this section. The district board or committee of the board may also reject the request for a waiver in which case the pupil shall not be allowed to register. Any person aggrieved by a decision of a district board or committee of the board on a request for a waiver under this subsection may appeal such decision to the circuit court in the county where the school district is located.
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6. Subsection 2 of this section shall not apply to a pupil who is a homeless child or youth, or a pupil attending a school not in the pupil’s district of residence as a participant in an interdistrict transfer program established under a court-ordered desegregation program, a pupil who is a ward of the state and has been placed in a residential care facility by state officials, a pupil who has been placed in a residential care facility due to a mental illness or developmental disability, a pupil attending a school pursuant to sections 167.121 and 167.151, a pupil placed in a residential facility by a juvenile court, a pupil with a disability identified under state eligibility criteria if the pupil is in the district for reasons other than accessing the district’s educational program, or a pupil attending a regional or cooperative alternative education program or an alternative education program on a contractual basis,

(emphasis added.)

To register for classes under the Safe Schools Act, a pupil must show that he or she is a resident of the district to be attended, has requested a waiver of the residency requirement, or is exempt from the residency and waiver requirements. Section 167.020.2, .6. When a nonresident pupil requests a waiver, the district “may grant the request for a waiver of any requirement of subsection 2 ....” or “may also reject the request for a waiver in which case the pupil shall not be allowed to register.” Section 167.020.3 (emphasis added). Because the statute uses the word “may” rather than “shall” when referring to the grant or denial of a waiver, the district is not under a mandatory obligation to grant a waiver to allow a pupil to register. See State ex inf. McKittrick v. Wymore, 343 Mo. 98, 119 S.W.2d 941, 944 (1938) (“It is the general rule that in statutes the word ‘may’ is permissive only, and the word ‘shall’ is mandatory.”). However, section 167.020.3 provides for judicial review of a district’s decision to deny a waiver, so a district’s discretion is limited.

Subsection 6 of section 167.020 exempts certain pupils from the residency or waiver requirements of subsection 2. Included in the exemptions are pupils attending school pursuant to section 167.121, a statute permitting transfer of pupils for transportation hardships, and section 167.151, a statute allowing admittance of nonresident tuition-paying pupils. Section 167.020.6. While pupils attending under sections 167.121 and 167.151 are exempt from the waiver requirement, pupils attending under section 167.131 are not.

The majority opinion implies that because section 167.020 does not mention section 167.131 expressly, then section 167.020 has no impact on section 167.131. Contrary to the majority’s assertion, examination of the statutes excluded from the waiver requirement of section 167.020 requires the conclusion that the legislature intended that non-resident pupils seeking admission under section 167.131 are subject to the waiver requirements of section 167.020.2(2). Like section 167.131, sections 167.121 and 167.151 govern situations in which pupils can attend schools outside of their district of residence. The legislature’s inclusion of sections 167.121 and 167.151 in the list of exemptions in section 167.020.6 indicates that the legislature in*673tended to exclude section 167.131 so a pupil attending a school under that section would be required to obtain a waiver from the board. See Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 146 (Mo. banc 1980) (“ ‘the express mention of one thing implies the exclusion of another’ ” (quoting Brown v. Morris, 365 Mo. 946, 290 S.W.2d 160, 166 (1956))).3

As discussed previously, section 167.020.3 vests a school with discretion whether to grant a waiver to nonresident pupils who are not exempt from the waiver requirements under the Safe Schools Act. Section 167.020.6 does not exempt pupils seeking admission under section 167.131 from the waiver requirements in section 167.020.3. Consequently, because a waiver is required, a school district, like Clayton, has discretion pursuant to section 167.020 in deciding whether to admit a pupil seeking admission under section 167.131. The majority’s interpretation of section 167.131 conflicts with this plain reading of section 167.020; therefore, an attempt must be made to harmonize the two provisions. S. Metro. Fire Prot. Dist., 278 S.W.3d at 666.

The two statutes can be harmonized by simply reading the last sentence in section 167.131.2 in its entirety and giving effect to every word. The final sentence of 167.131.2 states: “Subject to the limitations of this section, each pupil shall be free to attend the public school of his or her choice.” As noted above, this is the same provision the majority interprets as mandating an accredited district to accept any pupil from an unaccredited district who applies to the accredited district. The majority’s interpretation of subsection 2 of section 167.131, however, focuses only on the language “each pupil shall be free to attend the public school of his or her choice” and gives no effect to the legislature’s limitation of the pupil’s choice by its inclusion of the phrase “[sjubject to the limitations of this section.” “ ‘It is presumed that the legislature intended that every word, clause, sentence, and provision of a statute have effect.’” State ex rel. Unnerstall v. Berkemeyer, 298 S.W.3d 513, 520 (Mo. banc 2009) (quoting Hyde Park Hous. P’ship v. Dir. Of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993)). “Conversely, it will be presumed that the legislature did not insert verbiage or superfluous language in a statute.” Id.

A limitation on a pupil’s choice of schools is found in subsection 1 of section 167.131, which provides that the board of education of a district that does not maintain an accredited school shall pay the tuition of and provide transportation for “each pupil resident therein who attends an accredited school in another district of the same or an adjoining county.” (emphasis added). Section 167.131, read in its entirety, provides that while each pupil is free to choose the school the pupil desires to attend, that choice is limited by the requirement that the pupil be admitted to and attend the school of the pupil’s choice. Therefore, it is necessary to look to other provisions governing the admission of nonresident pupils, which would include section 167.020.

As discussed above, section 167.020 grants receiving schools discretion in *674granting enrollment waivers to nonresident pupils seeking admission pursuant to section 167.131. Therefore, reading section 167.131 in pari materia with section 167.020 reveals the legislature’s intention that, while a pupil “shall be free to attend the public school of his or her choice,” that choice is subject to the limitation that the pupil be admitted properly to the receiving school, which includes obtaining a discretionary waiver from the receiving school district pursuant to section 167.020.

To the extent that the majority opinion relies on the legislature’s removal of the language in section 167.131.2 — “but no school shall be required to admit any pupil” — to support its conclusion that a chosen school lacks discretion to deny admission to pupils from unaccredited districts, that fact does not change the interpretation above. Although the legislature may have intended to limit a school district’s discretion to admit students applying under section 167.131 in 1993 when it deleted the aforementioned language its subsequent enactment in 1996 of section 167.020.3 as part of the Safe Schools Act changed that result. Section 167.020 makes clear the legislature intended for school districts to have discretion in granting waivers to allow non-resident students to register and attend school.

In reaching its conclusion that section 167.131 requires the Clayton school district to accept students from the transitional school district, the majority opinion relies on the rule of construction that a more specific statute governs over a more general statute to the extent of any inconsistency between the two. However, that rule of construction traditionally applies only in situations in which the two statutory provisions being construed cannot be harmonized. See S. Metro. Fire Prot. Dist., 278 S.W.3d at 666 (rule applies “[i]f harmonization is impossible”); see also Greenbriar Hills Country Club v. Dir. of Revenue, 47 S.W.3d 346, 352 (Mo. banc 2001) (“rule applies only in situations where there is a ‘necessary repugnancy’ between the statutes.” (quoting State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W.2d 883, 885 (1939))); State ex rel. Dir. of Revenue v. Gaertner, 32 S.W.3d 564, 566 (Mo. banc 2000) (before applying the rule, the two statutes “should be harmonized if possible”). Because sections 167.020 and 167.131 can be harmonized, as noted above, the majority opinion’s use of that rule is misplaced.

This interpretation is also consistent with Department of Elementary and Secondary Education’s (DESE), interpretation that school districts have discretion whether to admit pupils residing in unaccredited schools under section 167.131. Shortly before the St. Louis school district officially lost its accredited status, DESE released a public statement regarding the effect of a school district’s loss of accreditation. In the public statement, DESE stated that “Accredited districts ... may accept or reject transfer pupils from an unaccredited district.” Additionally, DESE drafted an earlier memorandum regarding the responsibilities of an unaccredited school under section 167.131. The memorandum stated:

Historically, the department’s position has been that students may be accepted by an accredited school district on a “space available” basis. An accredited school cannot be compelled to accept students from an unaccredited district since local boards of education have discretion to admit or to not admit tuition-paying students.

DESE’s construction of section 167.131 is entitled to “great weight” because it is the agency charged with administering the educational laws of this state that pertain to elementary and secondary education. See *675Linton v. Mo. Veterinary Med. Bd., 988 S.W.2d 513, 517 (Mo. banc 1999).

Finally, this opinion’s interpretation avoids the absurd consequences that would result if the majority’s interpretation of section 167.131 prevails. To interpret section 167.131 as placing a mandatory obligation on the Clayton school district to accept all pupils from the City of St. Louis who apply for admission would mean there is no limit to the potential influx of pupils that Clayton or any other school district in St. Louis County could face. Under the majority’s interpretation of the relevant statutory provisions, school districts in St. Louis County would be required to accept pupils from the transitional school district even if the number of pupils seeking admittance exceeded their capacity or if St. Louis County school districts have difficulty collecting tuition payments from the transitional school district.4

To illustrate the point, taking judicial notice of the 2000 census as authorized by section 490.700, RSMo 2000, the City of St. Louis had a population of 89,657 people who were under the age of 18 years, with 23,477 of those people being under the age of 5.5 Accordingly, in 2000, the City of St.

Louis had approximately 66,180 school-aged pupils who were entitled to attend the city’s school district. In contrast, Clayton had a population of 2,584 people who were under the age of 18, with 490 of those people being under the age of 5.6 Therefore, in 2000, Clayton had approximately 2,0947 school-aged people entitled to attend the Clayton school district.8 Under the majority opinion’s interpretation of section 167.131, even if only 3 percent of the approximately 66,000 school-aged pupils living in the City of St. Louis applied for enrollment in the Clayton school district, the district would be required to accept all of those students, despite the fact that it would cause nearly a 100-percent increase in its enrollment. Such an increase would require the Clayton school district, virtually overnight, to acquire new classroom buildings and hire numerous additional faculty members to meet the increased demands on the district. Such a result is absurd. This Court “presumes the legislature did not intend to enact an absurd law and favors a construction that avoids unjust or unreasonable results.” Care and Treatment of Schottel v. State, 159 S.W.3d 836, 842 (Mo. banc *6762005).9

Conclusion

In summary, the language in section 167.131 providing that each pupil who resides in an unaccredited school district is free to attend the public school of his or her choice is subject to the limitations of that section. Subsection 1 of 167.131 includes a limitation in that it requires the unaccredited school district to pay tuition only for “each pupil resident who attends an accredited school in another district of the same or an adjoining county.” Section 167.020 governs the admittance of nonresident pupils by a school district and gives the district’s school board discretion whether to grant an enrollment waiver to any nonresident pupil who is not subject to one of the exemptions in subsection 6. Reading section 167.131 in its entirety and in harmony with section 167.020, a pupil who resides in an unaccredited school district can attend an accredited school in another district of an adjoining county and have the pupil’s tuition paid, as required by 167.131.1, only if the pupil has been admitted by the accredited school district and, unless the pupil qualifies for one of the exemptions in 167.020.6, the accredited school district has discretion whether to admit the nonresident pupil. Because the plaintiffs’ children did not qualify for one of the exemptions in section 167.020.6 and section 167.020.3 gives the Clayton school district board the discretion to decide not to admit the children, I respectfully disagree with the majority’s holding that Clayton is obligated to admit the plaintiffs’ children.10 Accordingly, I would affirm the trial court’s judgment in favor of the Clayton school district.

. All statutory references to section 167.131 are to RSMo 2000. Unless otherwise noted, all remaining statutory references are t<| RSMo Supp.2009.

. The Safe Schools Act was passed the year after a freshman girl at McCluer North High School in St. Louis County was raped and murdered in the school restroom by a pupil who had transferred to her school the day before because he had been suspended from another school. Susan Anderson, The Safe Schools Act Protects Missouri Students, 55 J. Mo. B. 264 (1999); Stanley M. Burgess, Missouri’s Safe Schools Act: An Attempt to Ensure a Safe Education Opportunity, 66 UMKC L.Rev. 603 (1998). The Safe Schools Act gives a school district access to information about a nonresident pupil who seeks admission. Under the act, the district has the right to obtain records of the enrolling pupil, including discipline records, and convene a hearing "where there is reason to suspect that admission of the pupil will create an immediate danger to other pupils and employees of the district.” Section 167.020.2(2), .7.

. In light of section 167.020’s purpose of promoting safe schools, the legislature may have limited its exemptions from waivers in subsection 6 to pupils who are required to go through a screening process to be accepted in a program, such as the interdistrict transfer program, or pupils given permission to attend school in another district by the state board of education under section 167.121, and those currently being supervised and monitored by another government entity, such as "a pupil who is a ward of the state and has been placed in a residential care facility by state officials.” Pupils who seek to attend under section 167.131 fit in neither of these two categories.

. One of the reasons given by the Clayton school board for its decision not to admit the parents’ children was that it previously had admitted pupils from the Wellston school district when that district became unaccredited and the Clayton district had difficulty collecting tuition payments.

. U.S. Census Bureau, http://factfinder.census. gov/home/saff/main.html (enter "St. Louis” in Fast Access to Information search engine; then click "GO”; then select “St. Louis city, Missouri" hyperlink; then click "2000” tab) (last visited July 6, 2010).

. U.S. Census Bureau, http://factfinder.census. gov/home/saff/main.html (enter "Clayton” in Fast Access to Information search bar; then select "Missouri" from drop-down menu; then click “GO.”) (last visited July 6, 2010).

. The validity of using the 2000 census figure is supported by a comparison of such figure with the Clayton school district's average daily attendance figures during the 2001-2002 school year. The average daily attendance for Clayton during 2001-2002 was approximately 2,314, while the census figure shows approximately 2,094 school-aged pupils residing in the Clayton school district in 2000.

. Admittedly the census figures have changed since the 2000 census; however, any changes in the population density of the two cities will not impact the enormous disparity between the two school districts and the potential for an unmanageable number of pupils seeking admission to Clayton schools.

. The majority opinion criticizes the fact that this opinion takes judicial notice of the 2000 census data. Judicial notice of the census data is taken only to illustrate the grievous consequences that may result if the majority’s interpretation were followed. Those facts are not essential to the ultimate conclusion reached in this opinion. Additionally, this Court, on multiple occasions, has taken judicial notice of facts on appeal when the facts were not part of the record on appeal. See Union Elec. Co. v. City of Crestwood, 499 S.W.2d 480, 483 n. 3 (Mo.1973); see also Lazare v. Hoffman, 444 S.W.2d 446, 449 (Mo.1969).

. Of course, as the majority opinion notes, this is a reversal of summary judgment in favor of the Clayton and transitional school districts and not a final resolution of the case. On remand, the parties are free to seek leave to amend their pleadings, to offer additional proof on relevant issues, including impossibility to comply with section 167.131, or to take such additional action as may be appropriate.