Superior Court Rules in Croydon Case

On July 29th the NH Superior Court ruled against the Croydon School Board in favor of the state Department of Education.

The Croydon School District offers K through grade 4 within the district and tuitions out students starting in 5th grade. The residents recently ended their Authorized Regional Enrollment Area (AREA) agreement with the Newport school district, but they still serve as the “anchor” or default schools for Croydon students. Starting with the 2014-2015 school year, Croydon implemented a school choice program that allows parents to alternatively select from most schools in the region, including out-of-district public schools and a couple of private schools. Tuition is pegged to the amount Croydon pays to send students to Newport. If parents pick a school with more expensive tuition, parents must pay the difference. If the tuition is less, the town has a savings.

In the first year Croydon sent five students to private schools, Newport Montessori School and Kimball Union Academy. Both schools are already approved by the state Department of Education for attendance, the only designation and regulations required for all private schools operating in New Hampshire. This past school year, Croydon sent four students to Newport Montessori School. Tuition there is approximately $4,000 less than the cost at the Newport schools, so this past year it was approximately a $16,000 savings to Croydon’s residents.

Croydon’s program is consistent with multiple state statutes that allow tuition agreements with private schools. RSA 194:22 says:

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.

This statute allows districts to contract with “other literary institutions.” What could that refer to other than private schools? 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. 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 and that is not what Croydon’s program offers.

Also, RSA 193:1, the statute that addresses school attendance specifically states in section I (a) 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.

Additionally, RSA 193:3 outlines several circumstances when children may attend a school other than the one assigned by their zip code. This is often called a “manifest hardship.” This section is the one cited to allow students with special needs to be individually assigned to out-of-district or private schools. This was a key component of Croydon’s argument to the court.

Croydon’s choice program is also consistent with practices by several other NH districts that have tuition agreements with private schools, including some across state lines. The state currently acknowledges public-private school agreements with Kimball Union Academy in Meriden as well as Bishop Guertin, a private religious high school in Nashua. The state DOE also approves of tuition agreements with out-of-state private schools.  The Lyme school district has agreements with Thetford Academy and St. Johnsbury Academy in Vermont, and Chatham has a tuition agreement with Fryeburg Academy in Maine.

It took several years and multiple town-wide votes for Croydon to develop their choice program. Along the way the state DOE was notified of the district’s plan as required by statute. It was only after students were already enrolled in private schools that the DOE made a fuss and sent “cease and desist” orders.

The Attorney General even filed an injunction in fall 2015 with a November 30th court hearing, claiming that Croydon’s students would be irreparably harmed if allowed to stay enrolled at the private school of their parents’ choosing. The AG also argued that the DOE would be vulnerable to lawsuits and face irreparable harm if parents were unhappy with their children’s performance at private schools, which are not required to provide an adequate education.  The Stafford Superior Court ruled in favor of Croydon in December 2015.

The state Department of Education and Attorney General have repeatedly argued 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 state’s “guarantee of an opportunity for an adequate education” as required by the Claremont decisions has nothing to do with quality or achievement levels.  RSA 193-E, the statute that defines an “adequate education,” only specifies the criteria and substantive educational content. If the state’s accountability system provides a solid educational standard for achievement, then why are most of NH’s schools failing even by their own criteria? The implication of achievement and success cannot be substantiated when the state’s assessment results and graduation rates are examined.

The DOE and AG also repeatedly said that public schools are “approved” by the DOE and private schools are only “approved for attendance”, implying that private schools are inferior. In truth, public and private schools have different minimum standards defined by the state Board of Education. Public schools must follow Ed 300 and Ed 306 whereas private schools are accountable for those in Ed 400. Private schools  may also need to meet requirements for additional affiliations and accreditations, such as those for Montessori schools, or other accrediting agencies. To say nothing of private schools having to answer to parents. Even chartered public schools have a different set of standards prescribed in Ed 318 although they are part of NH’s public school system.

Croydon’s school choice program was the catalyst for House Bill 1637 (2016) that passed both the House and Senate only to be vetoed by the Governor. This shows that the legislature fully supports tuition agreements that include private schools for Kindergarten through 12th grade.

The Court’s Ruling
The timing of the Court’s decision may have been prompted by a new preliminary injunction filed by the Attorney General on July 28th. Seemingly the AG wanted to force a decision before the new school year.

Department of Education motion for a Preliminary Injunction, 7/28/16

Like the Attorney General and state Department of Education, the Superior Court selectively quotes sections of statutes and ignores others.

NH Superior Court decision, state DOE vs Croydon, 7/29/16

The Court heavily cites the Manifest Hardship section of statute found in RSA 193:3, yet the ruling glosses over Section II that says:

  1. The state board of education shall adopt rules pursuant to RSA 541-A, relative to manifest educational hardship and related issues which affect a child’s attendance at school. Each 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.

The Court states that the statute is incorrectly applied by Croydon because parents are not required to prove educational hardship to the school board. Effectively the Court says the final decision is up to the state Board of Education although the statute specifies that parents disgruntled by their local school board may appeal to the state board. Croydon does not have upset families; in fact, parents report great satisfaction with the choice program.

The Court also says Croydon lacks a specific policy to address manifest hardship petitions. However, Croydon School Board members have often said that their policy is an informal one that recognizes parents know what is best for their children. The families also reported having various concerns about their children’s attendance in the Newport schools which made them seek out alternatives available through the choice program.

If Croydon’s policy is inconsistent with the one by the state Board of Education, perhaps it is because the BOE does not trust parents and believes the state knows best. And the Court agrees.

If the Court simply wants a more formal process for manifest hardship requests, then the Croydon School Board has indicated a willingness to adopt a more structured policy. However, the ruling is not clear if this would be sufficient or not although many districts use manifest hardship to place students in private schools.

The decision also gives specific definitions to words that are not given in statute. For example, the decision says that the reference to “schools” only means public schools. This is absurd given that other school districts have agreements with private schools that the state DOE recognizes. The Court also ignores RSA 194:22‘s reference to “other literary institution.” The inconsistency is obvious.

It is also bizarre that a staff member of the Department of Education, responsible for reviewing and approving Croydon’s AREA agreement withdrawal, is not a reliable source to represent the DOE. If that is true then how can any school district trust any decision issued by the DOE unless it comes from the commissioner, Dr. Virginia Barry herself.

The ruling completely undermines local control and any independent authority by school boards and towns.

How to Help
The Croydon School Board will hold a public meeting on Thursday, August 4th to discuss the ruling and decide how to proceed. It is expected that they will seek a reconsideration and file a petition to stay any action until the ruling can be appealed to the NH Supreme Court.

While they strategize with their attorneys, please sign our petition to the state Department of Education. It will send an email to the DOE Commissioner, Dr. Virginia Barry, telling her to stop the inconsistent and unfair treatment of Croydon. The message may be personalized for greater impact.

Beyond the scope of this individual case, we will continue to advocate for a legislative solution. We hope to introduce a bill similar to House Bill 1637 (2016) that would clarify these statutes and expressly allow tuition agreements with private schools. It would help more than a dozen small towns across the state that must tuition-out students and those facing declining enrollment.

For more information about Croydon’s program and court case, read the following.

Croydon’s Day in Court
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


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