The New Hampshire Department of Education has made two proposals to the State Board of Education seeking to change the rule implementing the Manifest Educational Hardship (MEH) statute. The department proposed these rules in March and different rules (here on p. 7) at the October 12 SBOE meeting. The board did not agree to these proposals and they are unlikely to be implemented because they do not reflect the current statute. However, Rep. Rick Ladd (R, Haverhill), chair of the House Education Committee, is drafting a bill (LSR 2530) that will propose changes to the MEH statute, probably along the same lines.

Here are the department’s proposed changes that could reappear in that bill.

Eliminating the role of the superintendent

The MEH statute relies on the superintendent to recommend an educationally appropriate solution if a student’s attendance at the assigned school presents an educational hardship. The statute says, “Each school district shall establish a policy…which shall allow a school board, with the recommendation of the superintendent, to take appropriate action including….”

The department’s proposed rule takes the superintendent out of the decision, saying that the school board takes action “upon consultation with the superintendent.”

Whereas “recommendation” puts the superintendent in the middle of the decisionmaking process, “consultation” merely means discussing the topic.

Reducing the evidentiary standard

The current MEH statute does not specify the evidentiary standard for establishing that a manifest educational hardship exists. However, the existing rule and the state board’s Initial Proposal (here on p. 3 of the October board packet) specify the “clear and convincing” standard. This is considered a “medium” burden of proof. It means that the parent must prove that it is “substantially” more likely than not that the facts meet the the criteria stated in the rule. The local school board must feel that the evidence in the parent’s favor is strongly convincing.

The department’s March proposal reduced the standard to a “preponderance of evidence,” meaning the hardship is “more likely than not to have occurred.” Its October proposal left out any reference to a standard, which is even worse. That would leave no criterion to go by in deciding appeals to the state board. Either way, every family would feel it had met the standard and discord would be sown among school board members with no guidance about the parameters for their decisions.

Creating easily met criteria for manifest educational hardship

The criteria for establishing a manifest educational hardship are not in the statute but, as stated in the current rule, conform with the 1974 New Hampshire Supreme Court decision, Lisbon Regional School District v. Landaff School District, 114 N.H. 674:

“(1) A substantial portion of a child’s academic, physical, personal and social needs cannot be met by the assigned school or are not found within the student body of the assigned school;

(2) The attendance at the assigned school will impair the educational progress of the child; and

(3) Another public school or public academy, either within the district or in another district, may reasonably meet the child’s educational needs.”

The department has proposed a dramatic reduction of the criteria, eliminating criteria established by our supreme court and used for 43 years:

“(1) A substantial portion of a child’s academic, physical, personal and social needs cannot be met by the assigned school; or

(2) The attendance at the assigned school will impair the educational progress of the child.”

Eliminating requirement that the alternative school be better able to meet the child’s needs means a school of any quality could be chosen. One of the department’s proposed drafts inserted an “or” between the remaining two criteria so only one, criterion would need to be used and the second one is extremely subjective.

These changes would make school board decisionmaking even more difficult and induce a great increase in the number of cases in which parents propose a change of school assignment as a matter of preference, convenience or choice.

Shifting the burden of proof

While the department’s proposed rule seemed to leave the burden of proof on parents to make the manifest educational hardship case, the goal of the department and, possibly, some legislators, is to shift the burden of proof from the parents to the school board, a radical legal departure. At the August 24, 2017 meeting of the state board of education, the commissioner intervened in a manifest educational hardship hearing listed on the agenda as Student/Con-Val School District to put forward the proposition that if parents “think” their child is experiencing a manifest educational hardship, the school board is obligated to provide “relief.” He makes his point at 1:52: 50 in the video saying, in part,

“When I look at the statute 193:3, I don’t see that affirmative burden being placed on the parent….The statute says that if a parent thinks that a manifest educational hardship exists…if they do exercise their right to apply….then it is the school board’s onus at that point in time to make a determination relative to relief under the statute.”

The commissioner then reads from the parent’s letter:

‘Assessing or determining hardship is a subjective task. What is a hardship for one family may not be a hardship for another. The subjective matter of this was brought up at the board meeting of 18 July, yet was not recorded in the minutes presented as evidence by the School Board. As Robert’s parents we are the only people who are fully qualified and have the legal right to determine what would be a hardship for our son. Our assertions are supported…’…etc.

The commissioner continues:

“…So my question here is that, given that the board’s responsibility is about relief, what were the options that the board considered to relieve this manifest educational hardship?”

ConVal attorney Dean Eggert disagreed, saying that the burden is always on the person bringing the action, in this case, on the parent. At 2:19:00 in the video, the commissioner responded, saying,

“…That’s your reading of the statute, but I think that there’s a reading of the statute here that supports adjudication of whether or manifest educational hardship exists or not resides with parents and that the onus on the board is to determine relief, which is what we have spent much of our time talking about.”

This is not a supportable reading of the statute. However, it may be a policy goal of the commissioner and some legislators to write into statute the proposition that if a parent thinks there is a hardship, the school board is obligated to assign the student to another school designated by the parent.

Adding the private school option

The department’s most recent proposed rule adds private schools as an option for alternative school assignment. This is not supported by statute but, if it were, would place an open ended obligation on local taxpayers to fund attendance at any public or private school selected by parents.

Current statutes assume the receiving school is a public school or a private school with which the school board has reached a tuition agreement and define the required tuition as the receiving school’s per pupil expense, not including transportation. There has been no discussion so far of defining any limit on the tuition to be paid to a private school chosen by the parent.

Conclusion:

The manifest educational hardship statute could become a backdoor to unlimited private school choice funded by local taxpayers

Any one of these changes would be a significant disruption to the functioning of New Hampshire schools. If several changes like these were incorporated into a manifest educational hardship statute, the new statute would create a new system of public education in New Hampshire.

The changes to the criteria, together with the lower evidentiary standard, would make it difficult to reject virtually any manifest educational hardship claim.

The addition of the private school option, together with shifting the burden of proof to the school boards, could make New Hampshire’s MEH statute a full fledged private school choice bill under which school districts could be required to pay other public and private schools tuition for a large number of students, with no upper limit on the number of schools tuitioned out this way.