Response to the NH DOE and Attorney General

Over the weekend we launched an email petition to the New Hampshire Department of Education Commissioner, Dr. Virginia Barry, and the Attorney General, the Honorable Joseph Foster. They are pursuing an injunction against the tiny town of Croydon in an effort to shut down their school choice program.

The program was developed with the approval of Croydon’s residents and selectmen in a process that took nearly eight years as part of their plan to end their AREA agreement with the Newport School District. Like many other small NH towns, Croydon has one school that directly provides education for their kindergarten through fourth-grade students. Croydon wanted to provide alternatives at an effective price for their older students. The proposal went through the NH DOE’s office and a couple local votes before finally being implemented with the 2014-2015 school year. The program continues to set the Newport School District as their “anchor” district, but now families have a choice with selected public and private schools in nearby communities. If the tuition for these schools of choice cost more than the contracted amount with Newport, the families must pay the difference. If the choice is less expensive, then it is a savings to Croydon.

In the first year, five students participated in the program; this year four students are enrolled in the Newport Montessori School at a $4,000 savings per student.

The NH DOE and AG first sent a letter to the Croydon School Board back in March, demanding that the students be removed from their selected schools. With just a couple months remaining in the school year, it was obviously not in the children’s best interests to disrupt their education at that time.

Nothing more happened until September, when the Attorney General sent a “cease and desist” letter, once again, after students were settled in their schools for the year. The NH DOE and AG’s letter repeats their message that, 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 gave the Croydon School Board 20 days to stop sending tuition payments to the private school which would effectively remove the students.

The Croydon School Board, on the advice of their attorney, former NH Supreme Court Justice Charles G. Douglas, has not complied with their demand, believing that their program is solidly based in NH law. Earlier this month the AG filed an injunction to force the issue and a hearing is scheduled in Strafford Superior Court for November 30th.

It is interesting to note that the NH DOE is the complaintant in the injunction. Who is being harmed? Are they representing the state’s interests or their own? Is the state being harmed because a small town found a fiscally prudent way to provide education for their students? The state Department of Education  allows other districts to make similar agreements with private schools. Why is Croydon’s unacceptable?

Attorney Douglas has stated that the NH DOE and AG are “cherry-picking” from state statute to substantiate their claims. In the Union Leader he said “Although the department contends that Croydon is barred from sending any students to private schools, the law supports Croydon’s legal right to send students to private school when they determine it in the best interest of the child.”

The email petition is generating an automatic response from the Attorney General’s office as follows:

From: “Cawelti, Jennifer” <Jennifer.Cawelti@doj.nh.gov>
Date: 
Subject: RE: Drop the Injunction Against Croydon
This message is being sent on behalf of Attorney General Foster.

Thank you for your email.   The issue of school choice is determined by the NH Legislature. To date, bills seeking to  permit parents to send their children to private schools with public funding have been rejected by the legislature.  Current law dictates under what circumstances taxpayer money may be used to fund education and Croydon is not abiding by those laws.  It is the obligation of the Department of Education and the Attorney General’s Office to ensure those laws are being complied with and that is why this court action has been commenced.

If you would like laws surrounding school choice to be altered, you may want to contact your legislator or senator.  You can find the contact information for your legislator at http://gencourt.state.nh.us/house/members/wml.aspx and for your senator at http://gencourt.state.nh.us/senate/members/senate_roster.aspx

Ann M. Rice
Deputy Attorney General
33 Capitol Street
Concord, NH  03301
(603) 271-4900
fax: (603) 223-6213
ann.rice@doj.nh.gov

The Croydon program is based upon state statute that supports private school tuition agreements, RSA 194:22 which reads,

194:22 Contracts With Schools. – Any school district may make a contract with an academy, high school or other literary institution located in this or, when distance or transportation facilities make it necessary, in another state, and raise and appropriate money to carry the contract into effect. If the contract is approved by the state board the school with which it is made shall be deemed a high school maintained by the district.

Clearly RSA 194:22 allows districts to contract with “other literary institutions.” What else could that refer to other than private schools?  This is consistent with other NH districts creating tuition agreements with private schools, even some out of state, including Pinkerton in Derry, Kimball Union Academy in Meriden, Coe-Brown Northwood Academy in Northwood,  Fryeberg Academy in Maine, as well as Thetford Academy and St. Johnsbury Academy in Vermont. Why can these districts enter into tuition agreements with private schools, yet Croydon can’t?

Note that the statute says “any school district.” It is not limited to districts that do not have their own schools. Croydon is only offering the school choice program to their students in grades 5 through 12 because they do not offer an in-district school at those grade levels. Their kindergarten through fourth-grade students are educated within the Croydon School District.

Also, RSA 194:22 could be reasonably interpreted to mean that the state DOE’s approval is only required if a school district wished to tuition-out all of their students. Clearly, that is not what Croydon’s program offers.

Although this statute falls under the “high school” heading, why would choice be limited to grades 9 to 12? What about younger students? Many small towns do not have their own schools, and like Croydon, must enter into tuition agreements for their students. Croydon must supply an out-of-district education for their students in grades 5 to 12 already; the choice program does not create the situation, but provides a cost-effective alternative to satisfy the need.

In the injunction the NH Department of Education and the Attorney General incompletely cite RSA 193:1, the statute that addresses school attendance. Section I (a) specifically states that attendance at a private school is a substitute for attending a public school. All of the schools selected in Croydon’s school choice program are approved and authorized to operate in New Hampshire.

193:1 Duty of Parent; Compulsory Attendance by Pupil. – 
I. A parent of any child at least 6 years of age and under 18 years of age shall cause such child to attend the public school to which the child is assigned in the child’s resident district. Such child shall attend full time when such school is in session unless:
(a) The child is attending a New Hampshire public school outside the district to which the child is assigned or an approved New Hampshire private school for the same time.

Words matter, and the NH Department of Education and Attorney General cannot selectively pick some and insert others as they wish. The law, as written, must stand.

Consistency matters. Statutes, regulations, policies, and approvals must be applied consistently to avoid discrimination.

Local control matters. The Croydon School Board, as directed by the town residents and selectmen, implemented a cost-effective program to provide an education for their students. Rather than being condemned, they should be applauded.

The NH Department of Education and Attorney General are wrong to punish Croydon and the four students enrolled in their school choice program. They have not presented a legally sound basis for their injunction and continued harassment.

Please continue to sign and share our email petition, and personalize the message. The NH DOE and AG need to know that words, consistency, and local control matters.

For more information about the Croydon school choice program, please read the following:
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

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