On Wednesday, March 9th, Croydon had its day in court against the state Department of Education and Attorney General. The hearing was at the Sullivan County Superior Court with Judge Brian Tucker. The state is seeking a permanent injunction to end Croydon’s school choice program which started with the 2014-2015 school year, which has the support of town residents. This year four Croydon students are attending the Newport Montessori School through the program, at a savings of roughly $16,000 to the town. Croydon has the oldest operating one-room schoolhouse in the country with classes in Kindergarten through grade 4. They must contract out for students in grades 5 through 12. They recently ended an AREA agreement with the Newport School District.
The hearing had several surprising moments. One came when the Attorney General argued that the Croydon School Board should not have listened to the DOE’s staff attorney regarding which schools could or could not be included in their school choice program because the decision did not come from the commissioner herself. If that is true, then no staff with any state agency can be a reliable source of information and decisions.
The Attorney General repeatedly commented that only public schools can provide an “adequate education.” This is consistent with the state DOE and AG’s letters to the Croydon School Board that said, “In order to meet its duty, the State of New Hampshire has implemented a system to guarantee that all public school children receive the opportunity for an adequate education. This system is exclusive to the public schools.” The AG tried to discredit the quality of education provided by Newport Montessori School. Instead, it was readily apparent that an “adequate education” does not refer to the quality of education, but following specific rules that are in place for public schools. Note that Croydon is part of SAU 43 with Newport, though both towns recently voted to leave the SAU and will each start their own administrative units. Newport’s 2015 statewide assessment scores have only 38% of students performing at a Level 3 or higher in English Language Arts and only 30% at Level 3 or higher in Math. The state averages were poor, but better than Newport’s scores. Is it a surprise that Croydon families would want options, when in addition to being part of a poorly performing district, their children experienced anxiety and feared bullying?
The Assistant Attorney General, Anne Edwards, is basing much of the state’s case on their interpretation of RSA 193:3, which says that “(e)ach school district shall establish a policy, consistent with the state board’s rules, which shall allow a school board, with the recommendation of the superintendent, to take appropriate action including, but not limited to, assignment to a public school in another district when manifest educational hardship is shown.” When the judge asked her to explain what “but not limited to” referenced, Attorney Edwards fumbled with a response, claiming that it is a policy issue. She said that, “the state has interpreted” that to only apply to public schools. Then she referenced bills that never passed the legislature as evidence of the state’s interpretation. However, the defense believes this is what allows Croydon to include private, non-religious, school options to families.
The AG also tried to corner Dr. Jody Underwood, Chairman of the Croydon School Board, into saying that the board does not have a policy for manifest educational hardship. Instead Dr. Underwood made it clear that their policy is to trust parents to know their children’s needs and that the money follows the child to the school that will best satisfy those individual needs. Note that NH districts routinely tuition-out students with special education needs to private schools.
The Assistant AG seemed equally confused when the judge asked her to explain what “other literary institutions” means in RSA 194:22 which states, “Any school district may make a contract with any academy, high school, or other literary institution located in this or, when distance or transportation facilities make it necessary, in another state, and raise an appropriate money to carry the contract into effect.” Ms. Edwards said she was sure it could not mean private schools because nobody’s ever done it, but she wasn’t sure. Although this section of statute references high school, it stands to reason that it should also apply to grade levels that a town does not offer internally.
Also the state attempted to imply a conflict of interest because one of the sitting Croydon School Board members is sending her children to the Newport Montessori School through the school choice program. This ignores that numerous members of school boards across the state have children in the local public schools. If Croydon’s decisions were a conflict of interest, than all school board members with children in public schools must also recuse themselves whenever policy decisions are made that would impact families and students. Obviously, this is a red-herring argument.
The state’s attorneys, Anne Edwards, and Department of Education attorney Erin McIntyre said they are seeking a permanent injunction because other small districts would seek a similar school choice program. That is absolutely true. Dr. Underwood has said that she has been contacted by many other districts that are very interested in this program, but are afraid to challenge the state. Fourteen other small districts across the state must contract out some portion of their student population with surrounding districts, so this case will have a major impact. That is exactly what the state fears most.
Judge Tucker has up to 90 days to issue a decision.
For additional information on the background of Croydon’s innovative program and their legal challenge from the Department of Education, read the following articles.
HB 1637 — School Choice for Small Towns
Guarantee an Adequate Education?
Injunction Hearing for Croydon vs the NH DOE
Response to the NH DOE and Attorney General
It’s About Control, Not the Kids
The NH DOE Continues to Bully Croydon
The DOE Wants to End School Choice
Innovative School Choice Program in Croydon
Also, please sign our petition to support school choice for small districts. It will send an email to Dr. Virginia Barry, the commissioner of the NH Department of Education, and the Honorable Joseph Foster, the Attorney General. It sends a message asking them to drop the lawsuit against Croydon and opposition to HB 1637, a bill that would clarify the law enabling small districts to include private school alternatives if they do not have a school at the children’s grade levels.
