Swain v. State Bd. of Ed., 7405

• Decision Date: 29 May 1976
• Docket Number: No. 7405,7405
• Citation: 360 A.2d 887,116 N.H. 332
• Parties: Ralph M. SWAIN et al. v. STATE BOARD OF EDUCATION.
• Court: New Hampshire Supreme Court

Page 887

360 A.2d 887

116 N.H. 332

Ralph M. SWAIN et al. v. STATE BOARD OF EDUCATION.

No. 7405.

Supreme Court of New Hampshire.

May 29, 1976.

Authony A. McManus, Dover, by brief and orally, for plaintiffs.

David H. Souter, Atty. Gen., and John S. Kitchen, Asst. Atty. Gen., for defendant.

PER CURIAM.

The issue involved in this appeal is whether this court should set aside the decision of the defendant State board of education not to order the original assignment of the plaintiffs' child to a publicly supported preschool special education program in the face of the determination of the Barrington School Board not to place the child.

On September 21, 1974, plaintiffs filed a request with the Barrington School Board that their then three-year-old child be assigned to a special preschool program for handicapped children. The local school board denied this request on January 21, 1975, primarily because the child had not reached school age. Plaintiffs appealed the decision to the State board of education. Upon the advice from the State Board, plaintiffs filed a second request with the Barrington School Board. A hearing was held on May 27, 1975, and the renewed application was denied on June 17, 1975. Plaintiffs again appealed to the State board. A hearing was held on July 16, 1975, but was recessed pending the rendering of an opinion from the attorney general's office. The hearing was reconvened on October 14, 1975, at which time the appeal was remanded to the Barrington Board based on the belief that the State board of education was unable to make an original assignment in this class of cases. After this request for a rehearing before the State board was denied, plaintiffs filed this appeal pursuant to RSA ch. 541.

It is the petitioner's contention that the statutory scheme of chapter 186-A (Supp.1975) mandates that all children up to twenty-one years of age be assigned to special education programs. Our reading of that chapter, however, is that although such education is authorized, assignment of preschool children is made at the discretion of the local school districts. RSA 186-A:7 (Supp.1975) reads, 'A school district shall establish programs for handicapped children as approved by the state board of education, or shall pay tuition to such an approved program maintained by another school district or by a private organization. Eligibility for this type of education shall be determined by the school board under regulations promulgated by the state board of education.' The statutory provisions envision a procedure where the local school board first will arrange for programs in which handicapped children may be placed and then in its discretion determine eligibility of the applicants for these programs. The language of RSA 186-A:6 (Supp.1975) effective July 1, 1976, that '(e)very handicapped child . . . shall attend an approved school or program to which he may be assigned (emphasis added)' is a further indication any such assignment is discretionary with the school board. It is mandatory that the child attend if assigned but it is not mandatory that there be an assignment.

The language of RSA ch. 186-A (Supp.1975) does not require that a handicapped child the age of this one be placed in a special education program. Rather, such placement remains within the discretion of the local school board. This interpretation is buttressed by the legislative history of the chapter. In reporting his committee's recommendaton that House bill 502 was inexpedient to legislate, Senator Smith stated, 'Mr. President, this bill has many similarities to...