In re Appeal of Rye Sch. Dist.

• Decision Date: 02 December 2020
• Docket Number: No. 2019-0397,2019-0397
• Citation: 173 N.H. 753,249 A.3d 166
• Parties: APPEAL OF RYE SCHOOL DISTRICT (New Hampshire State Board of Education)
• Court: New Hampshire Supreme Court

173 N.H. 753

249 A.3d 166

APPEAL OF RYE SCHOOL DISTRICT (New Hampshire State Board of Education)

No. 2019-0397

Supreme Court of New Hampshire.

Argued: July 1, 2020

Opinion Issued: December 2, 2020

C.B. and E.B., self-represented parties, by brief, and C.B. orally.

Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Wolfeboro (Barbara F. Loughman, Salem, on the brief and orally) for the Rye School District.

Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior assistant attorney general, and Jill A. Perlow, senior assistant attorney general, on the brief, and Ms. Lombardi orally), for the New Hampshire State Board of Education.

HICKS, J.

The Rye School District (District) appeals a decision of the New Hampshire State Board of Education (State Board) overturning the decision of the Rye School Board (School Board) denying a request by C.B. and E.B. (Parents) to reassign their child (Student) to a school in another district pursuant to RSA 193:3 (2018) (amended 2020). We affirm.

The following background facts are taken from the hearing officer's recommendation to the State Board, which, in turn, largely summarized the presentations of both parties at the hearing. According to the testimony of Student's mother (Mother), Student has a growth hormone deficiency that hinders physical growth and causes Student to fall behind academically and socially. Due to Student's small size, she is often picked up and carried by other pupils. In third grade, Student was pinched and poked by other pupils and was allegedly assaulted by one of them. Parents met with the Rye Elementary School principal, but she declined to file a bullying report. The school responded to this incident and a subsequent incident by promising to keep Student and the other child apart.

Although Mother indicated that fourth grade apparently went relatively well, at the start of fifth grade, Mother requested reassignment of Student, believing that the atmosphere of the middle school program was too much for Student and that Student needed to take things more slowly. She also alleged that the principal did not understand Student's 504 plan and was not aware of Student's attention deficit hyperactivity disorder

(ADHD) and anxiety issues. See 29 U.S.C. § 794 (2018) (codifying Section 504 of the Rehabilitation Act of 1973, which prohibits any program receiving federal funds from excluding or discriminating against an "otherwise qualified individual with a disability"). Mother requested an Individual Education Program (IEP) meeting, but the school believed that such a meeting was not necessary because the 504 plan could meet Student's needs. During that academic year, Student was again assaulted by a peer, had issues with anxiety, and was not gaining weight.

Sometime before the end of the 2016-2017 school year, Parents decided to withdraw Student from Rye Elementary School and enroll her in an elementary school in a different town. According to Mother, the new school was following the 504 plan and Student no longer needed help with homework. Student's anxiety decreased and she was gaining weight. In addition, according to Mother, there has been no bullying at Student's new school.

The hearing officer, however, found that there were "continuing issues at the new school after the reassignment took place." The hearing officer also found that Mother had been aware of Rye Elementary School's bullying policy but neither filed a bullying complaint nor addressed the issue with the school superintendent until after Parents had decided to place Student in a different school.

In November 2017, Parents applied to the School Board for reassignment of Student to her new school pursuant to RSA 193:3, I. At that time, the statute provided, in part, that "[a]ny person having custody of a child may apply to the school board for relief if the person thinks the attendance of the child at the school to which such child has been assigned will result in a manifest educational hardship to the child." RSA 193:3, I. Thereafter, the superintendent informed Parents that the School Board had denied the request. Parents appealed the School Board's decision to the State Board.

After an October 2018 hearing, the hearing officer recommended denial of the appeal, concluding that Parents "failed to demonstrate that attendance at the Rye School had a detrimental or negative effect on the Student" and that "[t]here was no basis for reassignment due to Manifest Educational Hardship." Parents filed an exception to the hearing officer's recommendation with the State Board, which scheduled oral argument on the matter. The State Board voted to accept the hearing officer's report but reject the hearing officer's recommendation, thereby overturning the School Board's decision.

The District moved for a rehearing on a number of grounds, including that the State Board violated its rules by failing to record the hearing before it. Acknowledging that it failed to record its proceedings as required by RSA 541-A:31, VII (2007) and New Hampshire Administrative Rule Ed 212.02(f) (Rule 212.02(f)), the State Board granted the motion for rehearing "for the limited purpose of rehearing oral arguments" and, in light of that decision, declined to address the other grounds in the District's motion at that time. After the rehearing, the State Board issued its final decision, reaffirming its rejection of the hearing officer's recommendation and its decision to overturn the School Board's denial of reassignment.

The District filed an appeal from the administrative agency, see Sup. Ct. R. 10, to this court arguing that the State Board erred by: (1) substituting its judgment for that of the hearing officer on matters of witness credibility; (2) rejecting the hearing officer's findings and reversing the School Board's decision where the State Board's "conclusions are not supported by competent evidence in the record"; (3) denying the District's "request for rehearing after reviewing a partial transcript that omitted most of the testimony of the ... District's witnesses"; (4) failing to follow its own rules; (5) failing to apply the correct standard for manifest educational hardship; and (6) "violat[ing] RSA 541-A:35 by failing to rule upon each of the ... District's proposed Findings of Fact." (Bolding omitted.) Before reaching these arguments, however, we consider a preliminary issue raised by the State Board; specifically, the State Board "seeks clarification as to whether a party can appeal, under RSA [chapter] 541, a [State] Board finding of manifest educational hardship under RSA 193:3."

I. Appellate Review

"Appeals from administrative proceedings may be taken under RSA chapter 541 only when so authorized by law." Petition of Hoyt, 143 N.H. 533, 534, 727 A.2d 1001 (1999) (quotation and brackets omitted); see RSA 541:2 (2007).

We have interpreted this clause to mean that the provisions of chapter 541 do not provide an appeal from the determination of every administrative agency in the state. Unless some reference is made to chapter 541 in any given statute, an appeal under the provisions of chapter 541 is not authorized by law.

Petition of Hoyt, 143 N.H. at 534, 727 A.2d 1001 (quotation and brackets omitted).

Our decisions have not been uniform as to whether a party seeking review of a State Board decision under RSA 193:3 may appeal under RSA chapter 541 or must obtain a writ of certiorari. In Landaff School District v. State Board of Education, 111 N.H. 317, 318, 282 A.2d 678 (1971), we noted that RSA 193:3, as then in force, "ma[de] no provision for appeal from orders of the State board, but on the contrary provide[d]: ‘The decision of the state board shall be final and binding.’ " Landaff School Dist., 111 N.H. at 318, 282 A.2d 678 (quoting RSA 193:3 (Supp. 1970) ). Accordingly, we reviewed the State Board's decision under a writ of certiorari. Id. In Appeal of Peirce, 122 N.H. 762, 763, 451 A.2d 363 (1982), however, we accepted an appeal of an RSA 193:3 decision under RSA 541:6 without comment. See RSA 541:6 (2007); cf. Swain v. State Bd. of Educ., 116 N.H. 332, 333, 360 A.2d 887 (1976) (deciding, without comment, an RSA chapter 541 appeal of a State Board decision declining to make an original assignment of a child to a preschool special education program).

Subsequent to our decisions in Landaff School District and Appeal of Peirce, the legislature enacted RSA 21-N:11, which provides, in part, that the State Board shall "[h]ear appeals and issue decisions, which shall be considered final decisions of the department of education for purposes of RSA 541, of any dispute between individuals and school systems or the department of education, except those disputes governed by the provisions of RSA 21-N:4, III." RSA 21-N:11, III (2020). The State Board expresses doubt as to whether this enactment authorizes this appeal, noting that "[t]he express language of RSA 21-N:11, III does not appear to create a substantive appeal right as it does not state that all Board decisions are subject to appeal under RSA 541." The District, on the other hand, argues that because that section "contains a clear reference to RSA 541," it satisfies the "so authorized by law" requirement of RSA 541:2. More specifically, the District contends that although RSA 193:3 does not refer to RSA chapter 541, the reference to that chapter in RSA 21-N:11 "serves as a catch all reference to authorize appeals to this Court for any final decision of the State Board."

We decline to address these arguments, because we are not writing on a clean slate with respect to this issue. In Appeal of Morrill, 145 N.H. 692, 695, 765 A.2d 699 (2001), we declined to address the argument that RSA 21-N:11, III provided a jurisdictional basis for an appeal of the State Board's decision regarding a teacher's suspension under RSA 189:31. See RSA 189:31 (2018). There, we assumed without deciding that the action was properly before the court under RSA chapter 541, "[g]iven...