University of New Hampshire Education Department Wiki

Morrill Hall
Education Department Faculty & Staff 2012

The University of New Hampshire Education Department
provides this wiki for the purpose of providing current information
on the debates surrounding educational reform and educational
practice. We will also provide policy briefs and research
by our faculty.

Below are some categories for current debates:

1. Creating Leaders through Global Citizenship & Local Community Engagement:

  • Policy Brief #13-01 Teaching Interns, Professionalism, and the challenges of Social Media

March 2013
Teaching Interns, Professionalism, and the Challenges of Social Media
Todd A. DeMitchellProfessor, Department of EducationLamberton Professor, Justice Studies Program
Thomas H. SchramAssociate Professor, Department of EducationDirector, Teacher Education Program

Who teaches matters. [1a]Susan Moore Johnson
The phone rang early one morning and an angry principal was on the line. A graduate education student was scheduled to “shadow” a professional educator that day but the principal called to inform the department chair that the graduate education student was declared persona non grata at the school. As the facts emerged, the student who was preparing to go to the school posted on a social media site that he/she was going to the school, naming the school, and stated, trying to inject levity in the post, that he/she hoped they would not be stuck with the dirty needles of the kindergarten students—an obvious allusion to alleged drug use at the school. A student at the school found the post, the child told her/his parent who called the superintendent, who then called the principal, who in turn called the department chair. This was a serious matter and the chair immediately contacted the student informing the student what had happened and that the student was required to report to the chair before going to any school as a student of the program. The future of the student hung in the balance with the upcoming meeting.

This real situation underscores the challenges that our education interns[1] face in an electronic, more closely connected, and online social world. It raises the issue of what responsibilities does the educational preparation program owe its students to properly instruct them on the challenges of balancing their private life and the requirements of being a public, professional educator, especially in the ubiquitous electronic environment that pervades our lives? This Policy Brief will discuss this challenge. The Brief is organized into four parts: first, what is the issue associated with social media and the preparation of educators; second, what is a professional; third, what does it mean to be an exemplar; and last, how do we respond as educational preparation programs to meet this challenge. This discussion of the intersection of law and the preparation of professional teachers is important as Perry Zirkel, a noted school law scholar, wrote with his co-author, “the professional literature neglects legal issues for student teachers[/interns].”[2]

I. The Challenge of Social Media

Social media or social networking “is a broad concept referring to the use of the Internet to furnish information that can be accessed by others.”[3] Terri Day writes, “Twenty-first century technology has transformed human relations.”[4] Teachers are not immune to the changes and challenges wrought by the technology created electronic communication and social media world.[5] One legal commentator notes that some school boards scrutiny of a teacher’s use of social media may implicate the United States Supreme Court finding in Bethel v. Fraser, a student free speech case, that teachers must teach “tolerance and the ‘fundamental values of habits and manners of civility.[6] For example, a Connecticut teacher’s contract was nonrenewed on the basis of his use of MySpace.[7] The teacher placed pictures of his students near the pictures of naked men, and his email communications with his students were characterized as crossing the line of professional association with his students.[8] Another teacher was fired for briefly watching pornography on the school’s computer, which was checked out to him.[9] And, a 26-year-old female teacher was dismissed for texting a 14-year-old male student that she wanted him to be her boyfriend and invited him to her apartment where the kissed and petted. Sexually suggestive text messages followed, though there was no further physical contact.[10]
If there are challenges to professional boundaries created by technology for teachers, there clearly are challenges to the boundaries of appropriate behavior on the part of interns who seek to become professionals. Consequently, as Mikulec argues, “it is important that pre-service teachers begin to think critically about their own personal use of Facebook, what they post, and what it means for them as they exchange student life for that of a professional.”[11] The freedom granted by social media interns enjoyed as undergraduates conflicts with the requirements of appropriate professional behavior. The privacy of their actions as undergraduate undergoes a different and heightened scrutiny as they become professional educators. “[W]hile teachers may argue that MySpace or Facebook comments are not intended for public view, the reality is that social networking sites are very much public domains, despite the tools to restrict access and protect privacy.”[12]
Examples of teacher interns who learned the hard way that to enjoy a private life, a teacher must endeavor to keep it private; and social media emphasizes the social and not the private aspects of one’s life. A twenty-five year-old secondary intern, Stacy Snyder, was barred from her internship site (twelfth grade English), failed her internship, and did not graduate with her B.S. in Education degree in secondary education with a teaching credential, however she did receive a B.A. in English.[13] The University requirements stipulated that interns are required to “‘maintain the same professional standards expected of the teaching employees of the cooperating school’ and to ‘fulfill as effectively as possible every role of the classroom teacher . . ..’”[14] The university supervisor discussed his concern at the mid-placement evaluation with Snyder with her classroom management in addition to problems with basic grammar, lesson preparation, and her understanding of the subject matter. The mid-placement evaluation also indicated, that although progress was “good” or “reasonable”, Snyder needed to work on “establishing “‘proper student-teacher boundaries.’”[15]

The teaching interns, at their orientation prior to starting their internship, were cautioned about referring to any students on their personal webpages. Contrary to the directive, Snyder communicated with her students about her MySpace webpage. She was warned by her cooperating teacher not to “discuss her MySpace account with the students and, urged the [Snyder] not to allow students to become involved in her personal life.”[16] At one point Snyder posted a picture of her herself wearing a pirate hat and holding a plastic cup “with a caption that read “‘drunken pirate.’”[17] In addition she posted a statement that was reasonably construed as being negative towards her cooperating teacher. Soon after the postings the University was notified that the school had concerns about Snyder’s professionalism and would not be allowed to return to her internship “‘under any circumstances.’”[18] She failed her internship.
The court upheld the decision of the university finding that it did not violate Snyder’s First Amendment rights.[19] Snyder was considered by the court to act more as a teacher and not as a student, thus she was held to the same standard as a teacher in which her speech via social media was analyzed as to whether it was a matter of public concern, which it was not. Therefore, her postings on social media were not protected speech.

University programs prepare individuals for service as a professional. The ethics in which universities infuse their preparation programs is important to the life of a profession. The working definition of a professional is dependent upon the preparation that its novices receive in their university preparation programs. As the First Circuit of Appeals asserted, a University’s practicum “closely resembles an employer-employee relationship” because the supervised student teaching activity reflects “the rudiments of a profession.”[20] How the professional is trained influences how she or he will practice.

II. Professionalism

Professionals hold a special place in our society. William J. Goode in his study of professions asserts that there are two generating qualities that define professions. They are “(1) a basic body of abstract knowledge, and (2) the ideal of service.”[21] He asserts that professionals fashion solutions based on the needs of the client, “not necessarily [on] the best material interest or needs of the professional himself.”[22] To be a professional means the professional must act in the best interests of the person receiving her/his services. Therefore, the predicate of a profession is the best interests of the client, not the needs, interests, and desires of the professional.

The further distinction between being professional and being a professional is instructive within the context of teaching and preparing teachers. As initially set forth by Goodson and Hargreaves in their study of teachers’ professional lives, being professional is about what one does, how one behaves.[23] It is about quality and character and the upholding of high standards of conduct and performance—for example, not getting too personally involved with children, or, in the issue at hand, not discussing a MySpace account with one’s students. Being a professional has more to do with “how other people regard you and how this affects the regard you have for yourself.”[24] This refers to questions such as the rigor of training and whether members of the profession have “collective autonomy over their own actions, and freedom from excessive outside scrutiny.”[25]

An exemplary standard of professionalism would encompass both dimensions—being professional and being a professional—joining status and autonomy with the trust and ability to make informed discretionary judgments. This points toward the need for an agreed-upon knowledge base and an understanding of professionalism as built around expert knowledge, usually gained through extensive education and training.[26]

In this regard, a profession is distinguished from an occupation. Professional work is complex and non-routine. It involves a standard of practice recognized and adhered to by the practitioners and a code of ethics supported by the profession.[27] Noted educational policy researcher Darling-Hammond writes, “Professionals are obligated to do whatever is best for the client, not what is easiest, most expedient, or even what the client himself or herself might want.”[28] Similarly, Goode asserted that one of the two core principles of professionalism is a “service orientation.”[29] The second pillar of professional is the acquisition of a specialized body of knowledge. Simply put, professionals exercise the standard of accepted practice acknowledged by the profession within the structure of a recognized code of ethics that is developed in the best interests of the client/patient/student. Professional practice is not exercised for the benefit of the practitioner; it is exercised for the benefit of the recipient of the service.

Consequently, how do we prepare our students to understand that the requirements of being a professional requires a shift from self interest to the interests of their students? All professions are dependent upon the post-secondary/graduate programs that prepare individuals for service in the profession. We carry an important responsibility to instruct our interns to understand, accept, and implement the requirements of the profession to act in the best interests of their students. Preparing interns for our profession involves more than acquiring technical competence; it is a casting aside of “self-serving status enhancement” and focusing on the development of “caring communities” that place the welfare and best interests of students at the center of service.[30] This, in part, requires that educator preparation program develop ways to assist students to find the proper balance between their private lives and their professional lives. The next section explores the intersection of the private and professional aspects of the intern’s life.

III. Exemplar: Teacher as a Mandatory Role Model

How private is a teacher’s private life away from school? Can a teacher’s private legal acts unrelated to teaching form the basis for discipline? An Illinois court in 1885 wrote about a teacher’s private life, “If suspicion of vice or immorality be once entertained against a teacher, his[/her] influence for good is gone. The parents become distrustful, the pupils contemptuous and the school discipline essential to success are at an end.”[31] Similarly, a half a century later the Pennsylvania Supreme Court asserted that teachers are deprived of the same freedom of action enjoyed by other members of the community because “[i]t has always been the recognized duty of the teacher to conduct himself in such a way as to command the respect and good will of the community . . ..”[32] Teachers have been held to the status of exemplar to which it is ascribed that they are and must act as mandatory role models. The United States Supreme Court summarized this position writing, “a teacher serves as a role model for [his/her] students, exerting a subtle but important influence over their values and perceptions.”[33] Yale Philosopher Robert George has argued, public institutions, including public schools, have a special responsibility to young people to protect the “moral ecology” of their communities from degradation.[34]

It is clear that teachers are held to the standard of exemplar, a mandatory role model for their students.[35] As an Illinois court stated: “We are aware of the special position occupied by a teacher in our society. As a consequence of that elevated stature, a teacher’s actions are subject to much greater scrutiny than that given to the activities of the average person.”[36] In other words, public school teachers are role models at all times--not just when they stand in a classroom in front of their students. But is this good law and reflective of our time of electronic connectedness where everyone is electronically close but, possibly, emotionally and physically distant?

The answer appears to be yes. For example, Frank Lampedusa, a tenured teacher, taught middle school (grades six through eight) literacy for five years before being promoted to Dean of Students. His principal characterized Lampedusa’s doing a “good job” and acting “professional.”[37] On June 22, 2008, a school district police dispatcher received an anonymous tip from a parent that Lampedusa had a listing on Craigslist section “men seeking men” titled “Horned up all weekend and need release.”[38] The section had disclaimers regarding age to enter (18 years old) and a notice that the site contained adult content. In order to enter the site the viewer had to click the disclaimer. The ad did not contain Lampedusa’s name or occupation. The ad had four pictures of Lampedusa: two pictures were of his face and upper torso, the third was of his anus, and the fourth was of his genitalia.[39]

A tip about the ad was relayed to the Area Three Superintendent of the San Diego Unified School District, Rich Cansdale, who met with Lampedusa at his school. Cansdale suggested that Lampedusa remove the listing. Lampedusa agreed and immediately left school to remove the listing and all known links to it. The ad had been up two days before it was discovered. Lampedusa had posted five or six previous ads on Craigslist soliciting sex.[40]

On July 17, 2008 Lampedusa was placed on paid administrative leave. He served during the initial tip to the administrative leave without incident. On November 10, 2008, he was served with a notice of suspension and with dismissal charges for evident unfitness for service and immoral conduct under the California Education Code.[41] The three-member panel of Commission on Professional Competence overturned his dismissal. The Commission found Lampedusa’s conduct of placing the ad as “vulgar and inappropriate and demonstrating a serious lapse of judgment.”[42] However, in spite of strongly condemning Lampedusa’s behavior, the Commission concluded that the school district had failed to establish a nexus between the placing the ad and his employment. In other words, the school district had not shown that his conduct resulted in harm to the school nor had it affected his ability to teach. Specifically, the Commission noted that “had any student, parent, or teacher viewed respondent’s ad, it surely would have washed over into his professional life and interfered with his ability to serve as a role model at school. However that simply never happened in this case.”[43] Thus, while acknowledging that Lampedusa was a mandatory role model, the Commission held that there school district did not establish a nexus, a connection, between Lampedusa’s online activity and a resulting harm to the education of the students of the school.

The school district appealed with the trail court adopting the finding and conclusion of the Commission. The school district appealed again. The Court of Appeals reversed the decision. Lampedusa’s conduct did “wash over into his professional life.”[44] The Appellate Court held that his ability to serve as a role model was compromised by the “pornographic nature of the ad” and by the impairment of his relationship with his principal established an adverse affect.[45]
Teachers, as exemplars, are held to a higher standard for the conduct of their private lives than the average citizen “because of their relationships to students. Their actions away from school are judged as if their conduct would set an example for how students should act.”[46] This points to the challenge of how we, as professors of education and cooperating teachers, tasked with preparing our interns to assume the role of teacher, address the challenge of balancing their social media world with the dictates of the profession to act as an exemplar as part of their ethical practice. Nidiffer’s advice for teachers may well be good advice for interns: “educators can avoid unwanted embarrassment and loss of employment by simply erring on the side of caution.”[47] If a teacher, or an intern, seeks to enjoy a private life she/he are well advised to keep it private or to keep it appropriate.

IV. Social Media and the Preparation of Teachers

As educator preparation programs confront the first Internet-raised generations of novice teachers, they must address the unintended consequences that heightened immediacy of access to information and social media outlets has brought to the educational arena. In particular, long-held distinctions between the worlds inside and outside of school are being redefined. This blurring of boundaries—and, in particular, the reconfigured contours of professional educators’ private lives—demands the “rethinking of professional education for teachers”[48] so as to incorporate ethical decision making into their practice. Warnick and Silverman note the distinctive characteristic of teaching, which “must focus specifically on the well-being of students” paying “attention to the moral dimensions particular to schooling.”[49] Professor of school law, Ann Hassepflug, advises, “Student teachers need to accept the workplace culture of their schools. They need also to consider how their conduct at their assigned schools as well as off-campus may impact their current success and future employment.”[50]
Because teachers have power over students and their students may emulate their actions, teachers have long been held to the status of exemplar. Given the ubiquity of social media, how can preparatory programs incorporate the inculcation of the ethics of the profession (the status exemplar) into the preparation and internship of its novitiates? We offer a few recommendations below as a beginning point.[51]

Reinforce Professional Requirements and Expectations

  • Distribute and discuss with preservice teachers the National Education Association (NEA) Code of Conduct[52] as a basis for their actions as interns as well as a basis for their actions once they become professional educators. Include the NEA Code of Conduct in the intern policy handbook. Mikulec writes, In order to be taken seriously as an authority figure, new teachers must make every effort to distinguish themselves as the adult in the room. To accomplish this, preservice teachers must have a clear definition of professionalism and the expectations that come with their job title.[53]
  • Be clear with interns that they are held to the status of exemplar even in their private life. Readings and discussions about what this means is a viable means of communicating their professional responsibility.[54] Make this part of your syllabus and add a policy statement to your intern policy handbook regarding their position as a role model. Invite principals and superintendents from area schools to preparation program classes and seminars to “drive this point home” to interns through real-life examples and actions they have taken in response to novice and experienced teachers’ missteps and mistakes relative to their professional responsibility (e.g., posting inappropriate, unprofessional content on their personal websites that may harm their effectiveness).

Intern Policy Handbook and Course Requirements
  • Provide any policies, procedures, or guidelines of the preparation program that concern personal behavior of the intern. This is especially important if violations of professional conduct can lead to dismissal from the program. The procedures—ideally outlined in a written “Field Placement Policy” developed with input from partnering schools—should be clear about the consequences for violation.
  • Prohibit interns from “friending” students and from joining student social media sites as “friends.” Professional distance must be maintained.

Coordinate with the Cooperating School District

  • Ensure that the school board policies of the cooperating school district regarding electronic communication and social media are distributed to the interns.
  • Establish clear expectations and lines of communication between the educator preparation program and the partnering schools to ensure that it is clear whose responsibility it is to distribute such policies.
  • Ask the principal or the cooperating teacher to discus how the policy is enforced at the school, ideally as part of teacher workshops and meetings that precede the start of the school year.

Education is a people intensive, critical public service. We must attract, prepare, and retain the best and the brightest to populate our classrooms. Society holds educators to a higher standard of behavior. We best serve our interns, the schools where they will work, and their communities by clearly articulating the professional responsibilities required for the profession. This includes responding to the challenges of establishing the boundaries of appropriate and inappropriate behavior for the next generation of teachers.


[1] For purposes of consistency and ease of reading, the term “intern” will be used to denote an education student, graduate or undergraduate, who spends an extended supervised period of time in a school as part of their professional preparation program.
[2] Perry A. Zirkel & Zora Karanxha, STUDENT TEACHINGAND THE LAW 1 (2009)
[3] Ralph D. Mawdsley & Allan Osborne, Teachers as Role Models: Limitations on Their Use of Social Networking, 276 Ed.Law Rep. 570 (2012).
[4] Terri Day, The New Digital Dating Behavior – Sexting: Teens’ Explicit Love Letters: Criminal Justice or Civil Liability, 33 Hastings Comm. & Ent. L.J. 69 (2010).
[5] See Charles J. Russo, Joan Squelch, & Sally Varnham, Teachers and Social Networking Sites: Think Before You Post, 5 PUBLIC SPACE: THE JOURNALOF LAWAND SOCIAL JUSTICE 1 (2010) asserting that social networking sites “have profoundly changed the way people, including teachers, communicate and interact” at 1.
[6] Patricia M. Nidiffer, Tinkering with Restrictions on Educator Speech: Can School Boards Restrict What Educators Say on Social Networking Sites? 36 U. DAYTON L. REV. 115, 117 (2010) (citing Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 681 (1986).
[7] Spanierman v. Hughes, 576 F.Supp2d 292 (D. Conn. 2008).
[8] Id. at 312-13.
[9] Zellner v. Herrick, No. 10-2729, 2011 U.S. App. LEXIS 8891 (7th Cir. April 29, 2011).
[10] Doe v. St. Francis School Dist., 694 F.3d 869, 871 (7th Cir. 2012). The teacher was fired, prosecuted, and plead guilty to fourth-degree sexual assault, id. The student sued the school district under Title IX but lost, failing to demonstrate that the school district had actual notice of the misconduct and failed to reasonably investigate the allegation, at 871-2.
[11] Erin A. Mikulec, Professional Faces: Pre-service Secondary Teachers’ Awareness of Issues of Self-Disclosure on Social-networking Sites, 15 CURRENT ISSUESIN EDUC. 1 (Sept. 21, 2012).
[12] Russo, Squelch, & Varnham, supra note 6 at 11.
[13] Snyder v. Millersville University, 2008 WL 5093140 (E.D. Pa. 2008).
[14] Id. at *5.
[15] Id. at * 7.
[16] Id. at *9.
[17] Id. at *10.
[18] Id. at 11-12.
[19] Id. at 27.
[20] Hennessy v. City of Melrose, 194 F.3d 237, 245 (1st Cir. 1999). See, also
[21] William J. Goode, The Theoretical Limits of the Profession. In AMITAI ETZIONI (ed.), THE SEMI-PROFESSIONSAND THEIR ORGANIZATIONS: TEACHERS, NURSES, SOCIAL WORKERS 277 (1969).
[22] Id. at 278.
[24] Hargreaves & Fullan, id. at 80.
[25] Id.
[27] See, e.g., National Education Association available at; Association of American Educators available at; American Association of School Administrators available at
[28] Linda Darling-Hammond, Accountability for Professional Practice, 91 TEACHERS COLLEGE RECORD 59, 67 (1989).
[29] William J. Goode, Encroachment, Charlatanism, and the Emerging Profession: Psychology, Medicine, and Sociology, 25 AMER. SOC. REV. 902, 903 (1960).
[30] Andy Hargreaves & Igor Goodson, Teachers’ Professional Lives: Aspirations and Actualities, in IVOR F. GOODSON & ANDY HARGREAVES (eds.), TEACHERS’ PROFESSIONAL LIVES 1, 20 (1996).
[31] Tingley v. Vaughn (1885), 17 Ill. App. 347, 351.
[32] Horosko v. Sch. Dist. of Mount Pleasant Township, 6 A.2d 866, 868 (Pa. 1939).
[33] Ambach v. Norwick, 441 U.S. 68, 78 (1979).
[35] See, e.g., Mawdsley & Osborne, supra note 4 at 571(“[t]here are certain professions which impose upon persons attracted to them, responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policeman and schoolteachers fall into such a category[,]” citing Board of Trustees v. Stubblefield, 94 Cal. Rptr. 318, 321 (1974); Todd A. DeMitchell & Richard Fossey, THE LIMITSOF LAW-BASED SCHOOL REFORM: VAIN HOPESAND FALSE PROMISES 52 (1997) (“Traditionally, educators have been compelled to adhere more strictly to the community’s moral codes than most other professions or occupations. Teachers have been considered holders of a special position of trust and responsibility because of their relationship with the community’s children.”
[36] Chicago Board of Education v. Payne, 102 Ill. App. 3d 741, 748 (1981).
[37] San Diego Unified School District v. Commission on Professional Competence, 124 Cal.Rptr.3d 320, 323 (Cal.App. 4 Dist. 2011).
[38] Id.
[39] Id.
[40] Id. at 324.
[41] Id. at 323-4.
[42] Id. at 324.
[43] Id.
[44] Id. at 327
[45] Id.
[46] Todd A. DeMitchell, Richard Fossey, Suzanne Eckes, Sexual Orientation and the Public School Teacher, 19 B. U. PUBLIC INTEREST L.J. 65 (2010).
[47] Nidiffer, supra note 7 at 142.
[48] Bryan R. Warnick & Sarah K. Silverman, A Framework for Professional Ethics Courses in Teacher Education, 62 J. TEACHER EDUC. 273, 274 ((2011).
[49] Id. at 283.
[50] Ann Hassenpflug, Student Teachers and First Amendment Speech, 243 Ed.Law Rep. 1, 10 (2009).
[51] Mawdsley & Osborne, supra note 4 provide an excellent list of recommendations for school districts regarding social media. Their recommendations for school districts informed the selection of our recommendations.
[52] See supra, note 28 for other codes of ethics.
[53] Supra note 12 at 10.
[54] The New Hampshire State Department of Education identified “Professional Responsibility” as a foundation for effective teaching “Effective teachers: Uphold professional and ethical standards.” NEW HAMPSHIRE DEPARTMENTOF EDUCATION, NEW HAMPSHIRE TASK FORCEON EFFECTIVE TEACHING: PHASE 1 REPORT 8 (2011). Available at

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2. Learning, Literacies & Culture:

  • Policy Brief # 12-01 HB 542 and Parental Control: "Shredding" the Public School Curriculum

    On January 4, 2012, the New Hampshire House of Representatives on a vote of 255-112 and the Senate on a vote of 17-5 were successful in overriding Governor John Lynch’s (D) veto of HB 5423 . This veto override took effect immediately and (a) allows parents to file an objection to any course material, (b) requires a school district to devise an alternative acceptable to the parent, and (c) the alternative must enable the child to still meet state requirements for education in the particular subject area of the objection.

    Below is a Policy Brief by Professors Todd DeMitchell and Joseph Onosko analyzing the legislation. It offers a legal and policy critique as well a providing some recommendations for implementing the new law. We hope that this policy brief is helpful in the discussion about the implementation and response to the law. The policy brief only reflects the views of Professors Todd Demitchell and Joe Onosko.

    Administration & Supervision Program
    Department of Education
    University of New Hampshire

    Policy Brief #12-01
    January 2012

    HB 542 and Parental Control: “Shredding” the Public School

    Todd A. DeMitchell
    Professor of Education Law & Policy, Department of Education
    Lamberton Professor, Justice Studies Program
    University of New Hampshire

    Joseph Onosko
    Associate Professor of Social Studies Education
    Director of Field Experiences
    University of New Hampshire

    HB 542 and Parental Control: “Shredding” the Public School

    If we are to eliminate everything that is objectionable to any [person] or is
    inconsistent with any of their doctrines, we will leave the public schools in shreds.
    Nothing but educational confusion and a discrediting of the public school system can
    result from subjecting it to constant law suits.”

    McCollum v. Board of Education (Jackson, J., concurring)2

    (United States Supreme Court)

    On January 4, 2012, the New Hampshire House of Representatives on a vote of 255-112 and the Senate on a vote of 17-5 were successful in overriding Governor John Lynch’s (D) veto of HB 5423 (full text of the bill is appended below). This veto override took effect immediately and (a) allows parents to file an objection to any course material, (b) requires a school district to devise an alternative acceptable to the parent, and (c) the alternative must enable the child to still meet state requirements for education in the particular subject area of the objection.

    The parental objection to course materials can be based on religious, philosophical, pedagogical or other reasons (or, possibly, no reasons at all) since there is no definition as to what constitutes the basis for an objection. In other words, the objection does not have to be grounded in a deeply held belief or the unique developmental needs of the child: any objection will do and, possibly without having to justify it. In addition, the legislation does not specify how any disagreement between the parent and the school is to be resolved. Similarly, there is no specification as to what curriculum or what instructional practice is to be used with the child between the time of the objection and the time at which the parent and school reach agreement. There is no provision informing districts what to do during the agreement process; are students to be removed from the curriculum and associated instruction or is the teacher to continue to deliver the community’s agreed upon curriculum? Furthermore, can other parents object to the alternative plan if it has any impact on their child, thus perpetuating a cycle of objections following objections? The legislation further requires parents to pay for the costs of the alternative educational experience. And finally, parents are shielded from any public disclosure of their names.

    We believe that Governor Lynch got it right
    4 in vetoing state Representative J.R. Hoell’s (R-Dunbarton) HB 542 and that the House of Representatives and the Senate got it terribly wrong.

    This policy brief is organized into three sections. First, it will explore the tension between parents’ requirements for the education of their child and the need for public schools to provide an education for all student-citizens in the school district.

    Representative Hoell wrote in a blog for
    NH Parents First, “A parent’s right to control the education of his/her child is guaranteed by the Constitution and the NH Republican Party platform as well.”5 This section will analyze Representative Hoell’s claim about the parents’ right to direct the education of their children, the asserted legal underpinning for HB 542. Second, the challenges of implementing this legislation are explored. Third, we will close with additional thoughts on why the Governor’s veto should have been
    sustained and we will offer suggestions to the hundreds of New Hampshire schools now scrambling to develop policies that satisfy all of the mandates of HB 542.

    “While parents may have a fundamental right to decide whether to send their child
    to a public school, they do not have a fundamental right generally to direct how a
    public school teaches their child.”

    Derry v. Marion Community Schools6

    (Federal District Court)

    I. The Conflict Between Parents and Public Schools: Curriculum on Demand

    Educating youth is of prime importance to both parents and the state. There is a tension between the parental right to make decisions about their child’s life and the public school’s responsibility to serve the interests of all the children and the community at large. For the state, education is perhaps its most important function.7 Given this tension it is of no surprise that our nation’s state and federal courts have offered clarification.

    A federal district court in New York summed the tension in the following way, “our nation has enjoyed a long history of encouraging families to take responsibility for the instruction of their own children, while at the same time, making school attendance compulsory and granting control of the curriculum to state and local officials.”
    8 Parents’ interests represent the private benefit of education and the state’s interests represent the public good of education. Both have legitimate spheres of influence over the education of a child: education confers both a private benefit and it is a public good. How have the courts balanced these sometimes-competing interests?

    Pierce v. Society of Sisters9 is the case most often cited by advocates for expanding the right of parents to compel the public school to educate their child in the manner they believe is best. In Pierce, the United States Supreme Court struck down the Compulsory Education Act of 1922, which required all of Oregon’s children to only attend public schools starting in 1926. The referendum campaign was organized and
    promoted primarily by the Ku Klux Klan and the Oregon Scottish Rite Masons.
    10 The strategy was to “Americanize” the schools in response to a wave of immigration. One Klansman succinctly stated the underlying rationale for the referendum: “Somehow these mongrel hordes must be Americanized; failing that, deportation is the only remedy.”11 The referendum narrowly carried. Thus, private education in Oregon would cease to exist as an alternative for parents with the implementation of the referendum.

    The High Court acknowledged the broad authority of the state to reasonably “regulate all schools”.
    12 Although the Supreme Court afforded the state extensive teaching powers in the role of educator, that right to educate youth is not without limits. Writing for the Supreme Court, Justice McReynolds enunciated an often quoted statement: “The child is not the mere creature of the State; those who nurture him and
    direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
    13 The Supreme Court found that the Compulsory Education Act of 1922 “unreasonably interferes with the liberty of parents and guardians to direct the upbringing of their children under their control,”14 however the Court did not hold that the parental right prevails over the power of the state to establish and direct its public schools. The issue in Pierce had nothing to do with parental rights to modify or direct the public school curriculum, rather the issue was whether Oregon could take away the right of parents to choose between educating their children in a private school or in a public school. The Supreme Court ruled that parents could choose between educating their children in private or public schools.

    The Supreme Court did not give parents the right or authority to control the curriculum that their child would receive in a public school, nor did it allow parents to decide not to educate their child. In short, compulsory education and the authority to determine the curriculum were clearly left to the state. The United States Supreme Court merely resolved the issue of whether it is reasonable for the state to compel a student to only attend a public school. The High Court found that parents have the liberty to choose whether to educate their child at a public school or a private school--such as ones maintained by the Society of Sisters and the Hill Military Academy (the plaintiffs). The decision did not exempt parents from reasonable regulations that communities might develop for the public schools.

    The position that parents have no constitutional right to dictate the curriculum in public schools has been supported by court decisions in New Hampshire, the First Circuit Court of Appeals, and in state and federal courts throughout the nation.
    15 For example, in Davis v. Page16 the federal district court for New Hampshire resolved a case arising in the Jaffrey-Rindge School District holding that the plaintiff parents could not compel the school to excuse their children from participating in lessons in which audio-visual aids were used in the instruction even though the parents objected to their use on religious grounds. The parents also wanted their children exempted from participating in music and health classes. The District Court stated that the State has an interest in maintaining and sustaining a coherent curriculum and that the “responsibility for the adoption of the school curriculum is statutorily vested in the School Board.”17 Parents can voice objections to their school board but final decisions about the curriculum and related instructional strategies reside with the school board, the court held. “Despite parental objections, courts have been unwilling to make patchwork exceptions to the School Board's curriculum.”18

    The ability of parents to direct the upbringing of their children by controlling the public school curriculum and related instruction was addressed in a First Circuit Court of Appeals decision. Because of the doctrine of stare decisis New Hampshire is bound by decisions made by the First Circuit Court of Appeals. The case involved parents’ allegation that their right to direct the upbringing of their child was abridged because the school mandated attendance at a school-wide AIDS awareness program. The court
    concluded in the section on parental rights:

    If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter. We cannot see that the Constitution imposes such a burden on state educational systems, and accordingly find that the rights of parents as described in Meyer and Pierce do not encompass a broad-based right to restrict the flow of information in the public schools.19

    In other words, parents do not have a constitutionally based right to direct the elements of the curriculum and related instructional activities to suit their individual needs, desires, or interests.

    The foregoing analysis demonstrates that the courts have consistently ruled that the power to determine the curriculum of the public school rests with the community’s elected school board. Parents who bring lawsuits to the courts claiming they have the right to dictate the content of the curriculum and/or the instruction typically lose. Representative Hoell’s assertion that parents have a constitutional right to control the curriculum of the public school for the benefit of their child is not supported by the weight of court decisions. The parental right and duty discussed in
    Pierce is not an expansive right; it is restricted to the choice of where to have their child educated and is not a right to dictate what shall be taught and in what manner it will be taught. This does not leave parents out of the equation. They can and should work with the educators in their public schools. They just cannot dictate the outcome of the collaboration.

    “To allow students and parents to pick and choose which courses they want to attend would create a stratified school structure, where division and derision would flourish.”

    Davis v. Page20

    (Federal District Court)


    Beyond the major legal obstacle discussed above, implementation of HB 542 is another problematic hurdle. While the statute may appeal to the value of choice21 in education, the devil is in the details of how to make it work. Until the law is struck down by the courts (or amended by the New Hampshire Legislature), New Hampshire schools must implement HB 542 immediately and face the challenges of its mandates.

    The following short discussion raises some additional concerns about whether HB 542 is a sound public policy or is just “good” politics. Is it clear or is it vague? Is it workable in schools with hundreds of parents who now can demand an alternative to any or all parts of the curriculum, resource materials, and the lessons their children receive on a daily basis? Does it comport with existing laws and court cases? (For example, a parent cannot compel a school to violate the Establishment Clause by insisting on an alternative that would have a religious purpose, have an effect of advancing or inhibiting religion, or excessively entangle religion in school practices.

    Questions about the implementation of HB 542 are divided into four parts; the objection, the resolution, the cost, and parental anonymity. This not an exhaustive analysis of the problems associated with HB 542, rather it is a formative attempt to respond to its requirements.

    1. The Objection—“specific course material based on a parent’s or legal guardian’s
    determination that the material is objectionable.”

    • • The reach of a parental objection is without limit in this legislation. In a response to a Huffington Post query, Representative Hoell, the author of HB 542, stated,

    the new law could allow parents to address both moral and academic objections to parts of the curriculum. The lawmaker said he could imagine the provision being utilized by parents who disagree with the "whole language" approach to reading education or the Everyday Math program.

    "What if a school chooses to use whole language and the parent likes phonics, which is a better long-term way to teach kids to read?" Hoell said to HuffPost.

    Governor Lynch in his veto message writes, “This legislation in essence gives every individual parent of every student in a classroom a veto over every single lesson plan developed by a teacher.”24 Speaking to the general proposition of parental control over the curriculum and echoing Governor Lynch, Davis noted in the Harvard Journal of Law & Public Policy, “Were parental rights to dominate school interests, public
    education would become untenable, as each parent would effectively hold veto power over the school’s curriculum
    .25 HB 542 is unworkable and the Governor’s veto should have been sustained.

    • • How does a teacher or a school provide an alternative to a whole language approach to reading instruction? How many different approaches must a teacher provide in a class of 25 students? How can a teacher possibly organize and teach multiple and, at times, conflicting approaches to reading instruction? With every new objection that results in an alternative plan, the school’s curriculum becomes increasingly balkanized, contradictory and undeliverable.

    • • Can a school be compelled to not teach evolution in a science class to a student and instead be required to teach creationism or intelligent design to that student--not all students, just the child of the objecting parent--because her/his parents object to evolution as nothing more than a theory and want alternative views taught to their child?26 Is the child of the objecting parent to leave the classroom when other students learn about evolution? Where will the student go and who provides supervision? Or, are teachers to include faith-based theories in science classes even though the courts have consistently struck down such actions as violating the Establishment Clause?27 This last example reveals a double-bind for our New Hampshire schools; they can violate HB 542 by refusing a parent’s request to alter or eliminate the teaching evolution or they can violate a long history of federal court rulings that prohibit the teaching of creationism and intelligent design in public school science classes. Remarkably, the new law provides no guidance for school boards and school officials.

    2. The Resolution—“a provision requiring an alternative agreed upon by the school
    district and the parent.”

    • Does instruction for the student whose parents file an objection stop immediately upon receipt of the written objection? What happens to the student at the time the objection is filed; must he or she leave the classroom until an alternative can be agreed upon as mentioned above? These are important questions that HB 542 does not address, instead allowing each incident to be approached in an ad hoc manner by all of the school districts in New Hampshire.

    • There is no specified timeline for finding an alternative. There is no provision, such as due process in special education, for a timely resolution. The search for a mutually agreeable alternative could be without time limit for resolution leaving all in limbo. While the rest of the class receives partial or whole units on the objectionable material, is the child of the objecting parent to be left behind? Clearly, the legislation
    cannot stand for the proposition that a parent of one child can place a hold on the education of all students whose parents do not object to the materials. Since there is no administrative remedy stated or contemplated in the statute, parents can presumably head straight to court to enforce their “alternative” if they feel thwarted by the school. This would add costs to the school district and would clog the courts.
    28 In addition, courts typically are loath to intervene in educational decisions centering on what instruction or what curriculum is best.29

    • The school board has the statutory authority and responsibility to adopt the curriculum for the school district and all of its students. This authority has been ceded to parents who object and demand that their alternative be implemented. This statute transforms the legitimate authority of the school board from a requirement to a suggestion for parents to accept or reject. How does HB 542 comport with current state
    law, which reads, II. Elected school boards shall be responsible for establishing the structure, accountability, advocacy, and delivery of instruction in each school operated and governed in its district. To accomplish this end, and to support flexibility in implementing diverse educational approaches, school boards shall establish, in each school operated and governed in its district, instructional policies that
    establish instructional goals based upon available information about the knowledge and skills pupils will need in the future.

    HB 542 contradicts and effectively eviscerates this long-standing legal responsibility of elected school boards.

    3. The Expense of the Alternative—“a provision requiring an alternative agreed upon by the school district and the parent, at the parent’s expense, sufficient to enable the child to meet state requirements for education in the particular subject area.”

    • • What can the school district charge the parents for the requested curriculum revisions? Despite the language of the new law, the answer appears to be “nothing” given current New Hampshire law which reads,

    I. It shall be the duty of the school board to provide, at district expense, elementary and secondary education to all pupils who reside in the district until such time as the pupil has acquired a high school diploma or has reached age 21, whichever occurs first; provided, that the board may exclude specific pupils for gross misconduct or for neglect or refusal to conform to the reasonable rules of the school, and further provided that this section shall not apply to pupils who have been exempted from school attendance in accordance with RSA 193:5.31

    • • If a school district bills the objecting parents does the invoice violate the right of parents to receive a free education for their children as required in the above statute? If yes, another potential cause of action arising from this legislation is created.
    • • Conversely, if the alternative demanded by parents ends up costing the school district extra money (because of the right to receive a free education), is the community being forced to fund a parent’s personal wishes for their child’s education? 31 RSA 189:1-a(I) Duty to Provide Education

    4. Anonymity—“The name of the parent or legal guardian and any specific reasons disclosed to school officials for the objection to the material shall not be public information and shall be excluded from access under RSA 91-A.

    • • This part of the law shields parents from public scrutiny and recrimination.

    When applied in other contexts, this mandate may well facilitate parents’ willingness to discuss curriculum concerns with school officials.

    Parents simply do not have a constitutional right to control each and every aspect of their children’s educatin and oust the state’s authority over that subject.”

    Swanson by and through Swanson, v. Guthrie Independent School District No. 1-L32

    (Federal Court of Appeals)


    The override of the Governor’s veto made HB 542 effective immediately (as of January 1, 2012). School districts must develop policies right away. There is no run-up period that allows superintendents and their boards to develop a thoughtful and reasonable policy. The right of the parent or legal guardian to an alternative plan is in place now and can be accessed immediately. We offer two suggestions below as school boards work with educators to develop the required policy.

    First, citizens, educators, parent groups, school boards, and school administrators should work together to challenge the law in court as well as lobbying the legislature to amend the law in ways that address the multiple legal and practical problems raised by this policy.

    Second, and most immediate, a policy must be drafted and implemented. We recommend the following:

    1. Involve teachers and principals when formulating the district’s policy, as they are the ones who will have to make it work.

    2. Adopt the position that any change to the curriculum/materials/lessons is a district change and, therefore, requires district involvement. Why? Because in spite of the provision for the objecting parent to pay for the alternative, it is entirely possible that the courts will find that there is a superseding right to a free education and therefore any alternative would involve a cost to the district. Second, the curriculum is a district responsibility. Consequently, it should retain authority over changes to it precipitated by state law; cohesiveness, alignment, and consistency in the instructional program must be maintained in spite of HB 542.

    3. We recommend that the implicated teacher(s), the principal, and a district office administrator be part of the team that meets with the parents.

    4. The written form for objections must require parents/guardians to clearly state what materials are objectionable and what alternative is requested. While an inquiry into the reasons for the objection are not required in the law, it is reasonable and prudent to have the parent be specific as to what is their objection.
    A generalized dissatisfaction does not facilitate the search for an acceptable alternative. A requirement to state a suggested alternative may help the district find a suitable resolution.

    5. Notes from the meetings should be part of the record. Any resolution must be reduced to writing and signed by all parties. Because the objection impacts the education of the student a copy of the objection and the alternative educational experience must be placed in the student’s cumulative file and a copy retained in the appropriate administrators’ files (site and district).

    6. The alternative must be grounded in what is necessary for “the child to meet state requirements for education in the particular subject area.” Focusing on this HB 542 requirement can provide an educational basis for denying alternatives that are patently dismissed by the scholarly and educational community. This requirement cannot be compromised even though it may result in an impasse. Surely the law does not require educators to seek an alternative for an unreasonable objection.

    We believe that this law is wrong and that it has great potential for mischief, if not bgreat harm.34 Parental input is vital to keeping the public in our public schools. Parents must be active participants in their child’s education, but that participation cannot turn the public school into a private tutor for hundreds of parents. Their concerns must be carefully listened to and considered, however, sometimes the school must say no to a parent’s request. HB 542 cannot legislate away the fact that there will be tension between what parents want and what the school community believes is in the best interests of the students and the community. It is necessary that parents speak for their children, it is also imperative and necessary that the school speaks for all children and the public that supports the school. Shredding the curriculum and its
    resulting confusion in response to every objection is not in the best interests of students nor of the community. New Hampshire’s support for local control of its public schools should not give way to individual control of our schools. HB 542 is the wrong answer for meaningful parental involvement in the public schools of New Hampshire.

    1The views expressed in this policy brief are solely those of the authors and do not necessarily reflect the views of the Administration & Supervision Program, the Department of Education, or the University of New Hampshire.

    2333 U.S. 203, 235 (1948).

    3The legislative history of HB 542 is available at

    4Press Release, Governor Lynch’s Veto Message Regarding HB 542, OFFICE OF THE GOVERNOR (July 13, 2011) (writing “I am vetoing this legislation because it does not clearly define what material would be objectionable; it would be disruptive to classrooms and other students; and it would be difficult for school districts to administer.) Id. at 1.
    Available at

    5Rep. J R Hoell (Dunbarton), HB 542 Ends Discrimination in Public Schools, NH PARENTS FIRST (Wednesday, Apr. 13, 2011).

    6790 F.Supp.2d 839, 850 (N.D. Ind. 2008).

    7See Brown v. Board of Education, 347 U.S. 484, 491 (1954) (“Today, education is perhaps the most important function of state and local governments . . . . In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.”).

    8Immediato by Immediato v. Rye Neck School District, 873 F.Supp. 846, 849 (S.D.N.Y. 1995).

    9 268 U.S. 510 (1925).


    11 Id. at 13.

    12 Pierce, 268 U.S. at 534.

    13 Id. at 535.

    14 Id. at 534-5.

    15 See, e.g., Swanson v. Guthrie Independent School District, No. I-L, 942 F.Supp. 511, 515 (W.D. Okl. 1996) (“Plaintiffs right to direct Annie’s education is not absolute, nothing in the Constitution, federal or state, grants [parents] the right to control public education on an individual basis.”); Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 395-96 (6th Cir. 2005) (“While parents may have a fundamental right to decide whether to send their child to a public school, they do not have a fundamental right generally to
    how a public school teaches their child.”) (emphasis in original); Leebaert v. Harrington, 332 F.3d 134, 142 (2d Cir. 2003) (The right of parents to control the upbringing and education of one’s child does not include “the right to tell the public schools what to teach or what not to teach him or her.”); Byars v. City of Waterbury, 795 A.2d 630, 645 (Conn. Super. 2001) (writing parents have never been entitled to “suspend all rules imposed by social institutions if those rules are at odds with the parents’ preferences.”).

    16 385 F.Supp. 395 (D.N.H. 1974).

    17 Id. at 405.

    18 Id.

    19 Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 534 (1st Cir. 1995) (citations omitted) cert. denied, 516 U.S. 1159 (1996).

    20 Davis, 385 F.Supp. at 405.

    21 For a discussion of the educational policy values of choice, excellence, equity, efficiency, and security, see Todd A. DeMitchell & Casey D. Cobb, Policy Responses to Violence in Our Schools: An Exploration of Security as a Fundamental Value, 2003 BYU EDUC and L. J. 459 (2003).

    22 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

    23 John Celock, New Hampshire Lawmakers Pass Law Allowing Parental Objections to Curriculum HUFFINGTON POST (Jan. 4, 2012) available at

    24 Lynch, supra note 4.

    25 Eliott, Davis, Unjustly Usurping the Parental Right: Fields v. Palmdale School District, 27 F.3d 1197 (9th Cir. 2005), 29 HAR. J. L. PUB. POL’CY 1133 (2006).

    26 See Kitzmiller v. Dover Area Sch. Dist., 400 F.Supp. 2d 707 (M.D. Pa. 2005) which held that a school district’s required disclaimer in a high school biology class that evolution is only one of several scientific theories was found to violate the Establishment Clause. The disclaimer included a statement about Intelligent Design as a viable and competing scientific theory. HB 1148, currently under consideration in the NH House will likely suffer the same fate as the Kitzmiller decision if it becomes law. HB 1148 is
    available at

    27 See, e.g., Epperson v. Arkansas, 393 U.S. 97 (1968); Edwards v. Aguilar, 482 U.S. 578 (1987); McLean v. Arkansas Brd. of Educ., 529 F. Supp. 1255 (E.D. Ark. 1982).

    28 See Monteiro v. The Tempe Union High Sch. Dist., 158 F.3d 1022, 1030 (9th Cir. 1998) stating The number of potential lawsuits that could arise from the highly varied educational curricula throughout the nation might well be unlimited and unpredictable. Many school districts would undoubtedly prefer to “steer far” from any controversial book and instead substitute “safe” ones in order to reduce the possibility of civil liability and the expense and time-consuming burdens of a lawsuit—even one having but a slight chance of success.

    29 “The second [consideration] is the broad discretion afforded school boards to establish curricula they believe appropriate to the educational needs of their students.” Id. at 1026 Also, see, KERN ALEXANDER & M. DAVID ALEXANDER, AMERICAN PUBLIC SCHOOL LAW (5th Ed.), 277 (2001) (writing “[m]ost precedents indicate that the courts though sympathetic with the intentions of the parent, generally defer to authorized and trained educational experts on matters of school policy.”)

    30 RSA 189:1-a(I) Duty to Education

    31 RSA 189:1-a(I) Duty to Education

    30 135 F. 3d 694, 699 (10th Cir. 1998).

    33 For example, parents might request instruction sympathetic to Holocaust deniers, Birther claims about President Obama, herbal cancer cures, numerology assertions, again because there is no definition of what qualifies as a material objection nor is there even a requirement for reasonableness of the objection. What are professional educators to do in these situations? And how will their intellectual integrity, self-respect as an educator, and commitment to the profession be sustained under these conditions?

    34 HB 542 appears to be part of a series of recent Republican bills designed to weaken public education. For example, see HB 1148 seeks to interfere with the teaching of evolution as well as the stalking horse HB 1457 “an act relative to scientific inquiry in the public schools.” For a critique of recent bills visit

    15Mar2011… 0726h

    06/01/11 2251s

    22June2011… 2422CofC

    2011 SESSION



    AN ACT relative to exceptions for objectionable material in public school courses.

    SPONSORS: Rep. Hoell, Merr 13

    COMMITTEE: Education


    This bill requires school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable.
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
    Explanation: Matter added to current law appears in
    bold italics.

    Matter removed from current law appears [in brackets and struck through.]

    Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

    15Mar2011… 0726h

    06/01/11 2251s

    22June2011… 2422CofC




    In the Year of Our Lord Two Thousand Eleven

    AN ACT relative to exceptions for objectionable material in public school courses.

    Be it Enacted by the Senate and House of Representatives in General Court convened:

    1 New Paragraph; State Board of Education; Duties. Amend RSA 186:11 by inserting
    after paragraph IX-b the following new paragraph:

    IX-c. Require school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable. Such policy shall include a provision requiring the parent or legal guardian to notify the school principal or designee in writing of the specific material to which they object and a provision requiring an alternative agreed upon by the school district and the parent, at the parent’s expense, sufficient to enable the child to meet state requirements for education in the particular subject area. The name of the parent or legal guardian and any specific reasons disclosed to school officials for the objection to the material shall not be public information and shall be excluded from access under RSA 91-A.

    2 Effective Date. This act shall take effect January 1, 2012.



    Amended 06/22/11


    AN ACT relative to exceptions for objectionable material in public school courses.


    ◦ The Department of Education states this bill, as amended by the Senate (Amendment #2011-2251s), will have no fiscal impact on state, county, or local revenues or expenditures.


    The Department states that this bill will have no fiscal impact. The bill requires school districts to adopt a policy allowing an exception to specific course material based on a parent’s or legal guardian’s determination that the material is objectionable. School districts may utilize the model policy of the New Hampshire School Boards Association in dealing with parental objection to instructional material, which can be modified at no cost to accommodate the requirements of the bill as amended.

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  • With Blocks, Educators Go back to Basics—New York Times

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3. Responsive Pedagogues to Transform Learning:

  • in Texas, Keeping Kids in School and Out of Court - NPR

  • Why can't kids search? 10 tips to develop better search skills—NovaNews

  • Five Big Changes to the Future of Teacher Education—Mind/Shift

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4. Collaborative Leadership & Policy Studies:

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Policy Brief #11-03 The Deliberate Indifference to the Sexual Abuse of Students

By Todd DeMitchell, Professor - UNH Education Department and Lamberton Professor - Justice Studies Program

Watch the video (below) of Professor DeMitchell delivering this Policy Brief to his EDUC 967 School Law
class at the University of New Hampshire. The pdf file of this policy brief is also available for download

Administration & Supervision Program
Department of Education
University of New Hampshire

Policy Brief #11-03
December 2011

Title IX's Deliberate Indifference Standard and the Sexual Abuse of Students: A Trust Betrayed

Todd A. DeMitchell
Professor, Department of Education
Lamberton Professor, Justice Studies Program
University of New Hampshire

Title IX's Deliberate Indifference Standard and the Sexual Abuse of Students: A Trust Betrayed[1

The worst sin towards our fellow creatures is not to hate them, but to be indifferent to them; that is the essence of inhumanity.

George Bernard Shaw, The Devil’s Disciple

Our discussion is set against a backdrop of the Penn State scandal involving the sexual abuse of children by those to whom they have given their trust only to be violated.[2While what happened at Penn State is probably not a Title IX case, the ethics of Title IX are brought to mind. Did the Penn State coaches and administrators act with deliberate indifference to the abuse of a child, or to phrase it differently, did they act vigorously to make a difference? This Policy Brief explores the standard of protection afforded to students under Title IX for their sexual abuse perpetrated by an educator and offers a few suggestions for what educators can do to protect the trust that has been given to them. We will begin by putting a human face on the issue.


Jane Doe was 14 years old. She had a reputation as a good student. Jane Doe also played soccer for her high school where Jeremy Green was an assistant coach. A couple of months into the school year Jane told her health teacher that Green made her feel uncomfortable because of the way he looked at her and his question about whether she had a boy friend who could be his competition. In addition, Green called her at home.[3

The teacher reported the conversation to the principal who called Jane Doe into his office to discuss the concern. Jane admitted that Green had called her at home and had paged the numbers “69” into her beeper. In addition, Green told Jane that he had had a relationship with a former student. She further told the principal that Green had proposed a bet, which would require her to kiss him if she lost the bet.

At a meeting with Green, the principal and the assistant principal, Green admitted to behaving inappropriately. Green was told to remain professional with Jane Doe and the other students and to not talk about his private life. Green acknowledged the directive.

Soon after, Jane Doe’s parents complained to the principal following an incident in which Green invited Jane Doe to get a soft drink. Once in his car he brushed his hand against her bare knee and thigh. A memo was developed defining the appropriate boundaries for relationships with students. No reprimand was given, no attempts to monitor Green’s behavior toward Doe on campus were formulated, and no follow-up was initiated with Jane Doe. Neither the principal nor the assistant principal “referred the matter to officials, child and family services, or any police or sheriff’s department.”[4 Up to this point Jane Doe, confiding to her head soccer coach that she still considered Green to be a friend even though she acknowledged that she felt that Green was pursing her sexually and that she was afraid that Green would “make her do something that she did not want to do.”[5

In December, at a potluck held off campus at the head soccer coach’s home Green and Doe kissed for the first time. They started meeting before school, after school, between classes, and Green would have the campus monitor pull Doe out of class where they would meet behind Green’s closed and locked classroom door. Once behind the locked door, Green and Doe would kiss and fondle.[6 Doealso started sneaking out of her house at night to meet Green. Soon their relationship turned from kissing and fondling to a sexual relationship.

In February, the campus monitor reported to the school authorities that Green and Doe were having sex. The police were called. In May, Green pled guilty to sexual seduction and to open and gross lewdness. Green was order by the court to have no contact with Jane Doe. However, Doe and Green continued their relationship for two months until the police caught them together in Green’s car. Green was sent to jail[7 and Jane Doe brought suit against the school district under Title IX.

The federal District Court of Nevada on the defendants’ Motion for Summary Judgment found that a reasonable jury could conclude that Doe’s teachers and her father’s reports are “sufficient to establish acts of harassment of which school officials had actual notice.”[8 Similarly,Judge Hicks held that the reasonable jury could find that the school officials acted with deliberate indifference to the notice of harassment/abuse.[9 Consequently,the defendants’ Motion for Summary Judgment dismissing the Title IX claim was denied. Jane Doe would have her day in court.

Jane Doe’s experience is not the norm for student-teacher relations. The great majority of our educators keep their trust with their students. Education is one of the great helping professions. “It is founded on a trust given by society and parents that the well being of children will be primary and the best interests of students shall be served by the actions of those in the profession.”[10 However,that trust is too often broken and we cannot allow that to stand.


Reform efforts that target student test scores, value-added modeling for teacher effectiveness and provide for merit pay but do not make the classroom a more secure place for children make a false promise of improvement. Efforts that focus on improving the workplace for adults but neglect student safety and well-being offer a vain hope of improving our schools in any meaningful way.[11 Asafe school for children is not a desired goal it is a mandatory condition forlearning.[12

In 2007, the Associate Press conducted a seven-month investigation into allegations of sexual abuse of students perpetrated by educators.[13 Overa five-year period (2001-2005) across the fifty states, they found 1,440 cases in which students suffered abuse at the hands of educators.[14 Thereport found that the abusers were “often popular and recognized for their excellence and, in nearly nine of 10 cases, they’re male.”[15The report summed their findings writing, “[s]tudents in America’s schools are groped. They’re raped. They’re pursued, seduced, and they think they’re inlove.”[16


Congress passed Title IX as part of the Education Amendments of 1972. It was enacted after extensive hearings by the House Special Subcommittee on Education in 1970 revealed pervasive discrimination against women with respect to educational opportunities.[17Title IX seeks to avoid the use of federal funds to support discriminatory practices; it seeks to “rid educational institutions of sexdiscrimination.”[18 Second, “it wanted to provide individual citizens effective protection against those [discriminatory] practices.”[19 TheSupreme Court held that Title IX contains an implied, enforceable private right of action.[20The law provides that “[n]o person in the United states shall, on the basis of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activities receiving Federal financial assistance.”[21Thus, the law applies to virtually every school district and college in the United States because of the pervasiveness of federal support.

Prior to 1992, there had been few court cases involving sexual harassment of students under Title IX. However, the landscape of Title IX changed in 1992. In the seminal Title IX case, Franklin v. Gwinnett County Public Schools, the Supreme Court clarified the range of damages available under Title IX. In this case a female student sued a Georgia school district for sexual harassment. According to the student, the teacher had;

engaged her in sexually-oriented conversation. . . forcibly kissed her on the mouth in the school parking lot . . .
telephoned at home and asked if she would meet him socially . . . and . . . on three occasions . . . interrupted a
class, requested that the teacher excuse [her] and took her to a private office where he subjected her to coercive intercourse.[22

The Supreme Court argued that Title IX placed on the Gwinnett County Schools a duty not to discriminate on the basis of sex and “when a supervisor sexually harasses a subordinate because of the subordinate’s sex that supervisor discriminates on the basis of sex.”[23Following this line of reasoning, in a strongly worded statement about the protection of Title IX in our schools, the Justices, in which there was no dissenting opinions, stated: “We believe the same rule should apply when a teacher sexually harasses and abuses a student.”[24A federal district court in Texas captured this position writing, “Without question, one of the core objectives of Title IX is to provide relief to young girls sexually abused by their male teachers receiving federal funds.”[25While the authorizing language of the Title IX statute did not specifically grant that money damages were an available remedy, the High Court concluded that a monetary damage award was possible underTitle IX.[26

The Gwinnett case was followed six years later when the Supreme Court handed down the ruling in Gebser v. Lago Vista Independent School District on June 22, 1998.[27The facts of Gebser are surprisingly close to the facts discussed above in Jane Doe; a female student was pursued by an educator who had groomed her for seduction and abuse. The educator used the power of his position to gain and then betray the trust of the student. The Court in a five to four decision held: “damages may not be recovered for teacher-student sexual harassment in an implied private action under Title IX unless a school district official who, at a minimum, has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’smisconduct”.[28

The Court concluded that the express remedial scheme under Title IX is predicated upon notice to an “appropriate person.” An appropriate person, the Court defined, was one who “has authority to address the alleged discrimination and to institute corrective action on the recipient’s behalf.”[29In addition, after an appropriate school official has received actual knowledge of the sexual abuse, the response to the complaint must amount to deliberate indifference in order for the plaintiff student to prevail. In other words, the school official after receiving notice of the abuse “refuses to take action to bring the recipient into compliance” is, therefore, deliberatelyindifferent.[30

The twin triggers of protection of actual knowledge and deliberate indifference are high standards to meet as the dissent noted writing, “the Court ranks protection of the school district's purse above the protection of immature high school students.”[31Similarly, the Eighth Circuit Court of Appeals in Schrum v. Kluck characterized deliberate indifference as a “stringent standard of fault.”[32


In a study of federal court of appeals decisions related to the sexual abuse of student perpetrated by educators, the authors found that school districts won the cases at an overwhelming level.[33Of the 28 reported cases, school districts won 24 of the cases. The stereotypical case from this research of sexual abuse by a school employee generally involves a male high-school teacher or coach who has an exploitive sexual relationship with a female high school student. However, of the 28 cases reviewed, only 14 involved male educators and female students. Ten involved allegations of sexual misconduct by a male teacher against male students.[34In three cases, plaintiffs alleged that a female educator sexually harassed or abused a female student, and one case involved a male student and a female teacher. In other words, 13 cases involved allegations of same-sex abuse, while 15 cases dealt with allegations of heterosexual abuse. Three of the four cases in which the student prevailed the sex of the student was female and her perpetrator was male. The one same sex case was male and male.

Most cases concerned allegations of abuse in a high school (17), while seven cases were set in elementary schools, and three cases involved charges of sexual misconduct in a middle school or junior high school. Of the four cases in which the student plaintiff prevailed, three occurred in high schools and one occurred in an elementary school.

Research literature has determined that teachers in coaching positions, band directors, and other teachers in extracurricular activities figure prominently in sexual abuse cases against students. Their findings are in harmony with the literature. Nine of the cases involved educators in coaching, band director, music teacher, or other extracurricular job. Nevertheless, a majority of the cases dealt with sexual abuse allegations by classroom teachers.

The cases reflect the challenge that administrators face when investigating allegations of sexual abuse. Generally both the perpetrator and the victim conspire separately to keep the truth out of the investigation. For example, in Sauls v. Pierce County School District the administration interviewed both the teacher and the student several times, discussed the allegations of potential sexual abuse with the police, continually monitored the teacher, contacted the parents of the alleged victim, and warned the teacher about appropriate behavior with her students.[35 Even after a substitute teacher found a note from the male student admitting the relationship and extorting $100, the return of his cell phone, and sex at a specific time, the teacher continued to deny the sexual abuse.[36The court found that the appropriate officials did not act with deliberate indifference once receiving actual notice of the abuse.

What can we do so as to act deliberately to make a difference?

1. Abusive educators often ‘groom” their students by treating them in a special manner: starting slowly and building their trust and increasing their attachment and vulnerability. Signs of grooming may include inordinate amounts of attention being paid to a student, sexual comments and innuendos directed at students, pulling the student from classes for private meetings, giving gifts, inappropriate touching (sitting on the teacher’s lap, hugging, stroking, etc.). Not all individual acts that may constitute grooming in the aggregate are grooming acts. However,
• We must look for the pattern of behavior and be willing to ask the
educator about his/herbehavior.[37
• We must engage our faculty about defining, establishing, and
enforcing professional boundaries.
• Consider adding a professional relations with students section to your
faculty handbook.
2. Both the student and the educator are motivated by a desire to keep their sexual relationship a secret. Therefore, they are often not honest or forthcoming in interviews. For example in Baynard v. Malone[38the abused student did not finally come forward until the student had graduated and gone on to college that he brought a Title IX suit.

School officials cannot just rely on the bald statement that nothing is going on. As seen in the Sauls case above the school authorities did not just wrap up their investigation at the first insistence that nothing was going on. They kept monitoring the situation. This did not happen in the Jane Doe case. However, the school administration in Frye v, Board of Education of County of Ohio responded appropriately once officials received notice of abuse.[39The school district investigated the allegations, met with the district’s counsel, removed the student from the classroom, and placed the teacher on a behavior modification program.[40A thorough investigation protects the student from further abuse and it protects the educator from wrongful accusations.

3. Too often a school is more concerned with the reputation of the school than the abuse of a student. The “blind eye” approach to reports of suspected sexual abuse by educators is sometimes the first response. These schools fail the question of “whom do we protect, the student or the school?” For example in Gonzalez v. Yselta Independent School District[41a school district instead of reporting a teacher’s suspected child abuse merely moved the teacher to another school or in Daly v. Derrick[42 in which the faculty of an alternative school negotiated with three female students who were sexually abused by one of their teachers at the school to move the teacher in exchange for the students’ silence on the sexual abuse. The educators considered the school more important than their students. In the long run, as the Penn State scandal is demonstrating, the institution is best protected by a thorough and prompt investigation. It is hard to reclaim a damaged reputation.

It bears stating that even when a school official has acted appropriately in response to notice of alleged abuse, the standard is not that the abuse has been stopped; as with negligence, we do not insure the safety of students.[43For example the Fifth Circuit Court of Appeals held that a principal investigated and erroneously concluded that the student was lying about the abuse.[44The principal did not respond with deliberate indifference to the notice “Officials may avoid liability under a deliberate indifference standard by responding reasonably to a risk of harm, ‘even if the harm ultimately was not averted.’"[45

Children must not be treated with indifference by the adults in their lives. This should be an uncontested truth. There is an “immense trust placed in school employees to keep students safe and to maintain an environment and relationship conducive to learning.”[46A loathsome of act of an educator is to act with indifference to the welfare of a student when harm is deliberately visited upon the student through sexual abuse—the educator could have acted but chose not to. Laws, rules, and regulations are necessary but they are not sufficient. Creating a school culture that protects students first is critical. Communicating and enforcing clear, unambiguous statements about maintaining a professional relationship with students is necessary. Preventing harm and responding to early signs such as grooming is a challenge we must meet. Our goal must be zero indifference to our students, and zero tolerance for the sexual abuse of our students.

[1]The term “ A Trust of Betrayed” is borrowed from the title of a three-part Series Special Report published by EDUCATION WEEK (Dec. 2, 1998, Dec. 9, 1998, Dec. 16, 1998) that explores when educators cross the line of professionalism and sexual abuse their students.
[2]See, e.g., Bill Chappell, Penn State Abuse Scandal: A Guide and Timeline, NPR (Nov. 17, 2011) available at; Huffington Post, Penn State Scandal (Nov. 19, 2011) available at
[3]Jane Doe A. v. Green, 298 F.Supp. 2d 1025 (D. Nev. 2004).
[4]Id. at 1029.
[5]//Id//. at 1028-9.
[6]Id. at 1030.
[7]Green was sentenced to a maximum of sixty months to a minimum of 24 months. Id.
[8]Id. at 1034.
[9]Id. at 1036.
[10]Todd A. DeMitchell, The Duty to Protect: Blackstone’s Doctrine of In Loco Parentis: A Lens for Viewing the Sexual Abuse of Students, 2002 B.Y.U. EDUC. AND L. J. 17, 49 (2002).
[11]TODD A. DEMITCHELL & RICHARD FOSSEY, THE LIMITSOF LAW-BASED SCHOOL REFORM: VAIN HOPESAND FALSE PROMISES 100-104 (1997). See, also Todd A. DeMitchell, Student to Student Sexual Harassment and Title IX: A Conflict in the Federal Courts, 5 INT’L. J. OF EDUC. REFORM 496, 504 (1996) (“No student should have to run a gauntlet of abuse in order to attend school. . . . If we do not value our students and their well-being at school, nothing else is of sustainable value in our schools.”).
[12]See Cary Silverman, School Violence: Is It Time to Hold School Districts Liable for Inadequate Safety Measures? 145 Ed. Law Rep. 535, 553 (2000) (“The public expects schools to provide a safe haven that takes the place of parents during school hours, protect their children, and provide their children with a proper learning environment.”).
[13]Martha Irvine & Robert Tanner, Sex Abuse a Shadow Over U.S. Schools, EDUC. WEEK (Oct. 21, 2007) For other studies of the sexual abuse of students, see U.S. Department of Education, Office of the Under Secretary (prepared by Charol Shakeshaft), EDUCATOR SEXUAL MISCONDUCT: A SYNTHESISOF EXISTING LITERATURE (2004); American Association of University Women, HOSTILE HALLWAYS (2001).
[15]Id. However, the sexual abuse of students is not just perpetrated by male teachers. A number of high profile female teacher sexual abuse cases were reported on early in the last decade. For example, the following are high profile cases involving female teachers, sexually abusing their students: Stacy Shuler (Kevin Dolak, Ohio Gym Teacher Jailed for Sex With Students, GOOD MORNING AMERICA (Oct. 28, 2011); Pamela Turner (Colin Fly, Teacher’s Image Shattered by Teen Sex Allegations, HERALD SUNDAY (Portsmouth, NH) C2 (Feb, 13, 2005); Debra Lafave (Mitch Stacy, Teacher Pleads Guilty in Student Sex Case, THE BOSTON GLOBE A19 (Nov. 23. 2005); and Mary Kay Letourneau (Erin Van Bronkhorst, Teacher: Baby Born of Love for Pupil, 13, THE BOSTON GLOBE A12 (Aug. 15, 1997));. See, also Joe Stennis, Jr., Equal Protection Dilemma: Why Male Adolescent Students Need Federal Protection from Adult Female Teachers who Prey on Them, 35 J. L. & EDUC. 395 (2006).
[17]118 CONG. REC. 5804 (1972) (remarks by Sen. Bayh). According to Senator Bayh, Title IX’s sponsor, the statute was intended to:
provide for the women of America something that is rightfully theirs--an equal chance to attend the schools of their choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the jobs of their choice with equal pay for equal work
[19]Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
[20]Id. at 709.
[21]20 U.S.C. §1681(a) (2000).
[22]Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 63 (1992).
[23]Id. at 75.
[25]Leija v. Canutillo Indep. Sch. Dist., 887 F.Supp. 947, 951-52 (W.D. Tex. 1995).
[26]This holding was consistent with a prior decision in Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) which upheld the theory that Title IX, in addition to being enforceable through administrative regulations, is also enforceable through an implied private right of action.
[27]524 U.S. 274(1998).
[28]//Id//. at 277.
[29]//Id//. at 290.
[31]Gebser, 524 U.S. at 306 (Stevens, Souter, Ginsburg, & Breyer, JJ., dissenting).
[32]249 F.3d 773, 780 (8th Cir. 2001).
[33]Richard Fossey & Todd A. DeMitchell, Title IX’s ‘Deliberate Indifference’ Standard for Determining School Liability Under Title IX When Students Are Sexually Abused by School Employees: How Effective Is it in Encouraging Vigilance by School Officials? Education Law Association, Chicago, Illinois November 2011.
[34]The Supreme Court has found same-sex harassment claims actionable under Title VII. Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).
[35]399 F.3d 1279, 1282-83.
[36]//Id.// at 1284.
[37]In J.M. v Hilldale Indep. Sch. Dist. No 1-29, 397 Fed. Appx. 445 (10th Cir. 2010) the Tenth Circuit Court of Appeals upheld the judgment for a student stating, evidence showed that student reported to assistant principal that instructor was in hotel room with student behind a closed door and that assistant principal reported this to principal. No investigation was undertaken. Such a lack of response, a reasonable jury could conclude, “was not reasonable.” At 24-5.
[38]268 F.3d 228 (4th Cir. 2001).
[39]1999 U.S. App. LEXIS 759 (4th Cir. 1999)
[40]Id. at *5
[41]996 F.2d 745 (5th Cir. 1993).
[42]230 Cal. App. 3d 1349 (1991).
[44]Doe v. Dallas Indep. Sch. Dist. 220 F.3d 380 (5th Cir. 2000).
[45]Id. at 384.
[46]//Jane Doe A. v. Green//, 298 F.Supp. 2d at 1038 (asserting that engaging in sexual relations with students is an “extreme” violation of this trust.). Id.

Professor Todd DeMitchell delivers his Policy Brief 11-03 to his EDUC 967 class at the University of New Hampshire.

A Trust Betrayed from Barbara Locke on Vimeo.

Professor Todd DeMitchell delivers his Policy Brief 11-03 "Deliberate Indifference to the Sexual Abuse of Students" to his EDUC 967 School Law class at the University of New Hampshire.

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Policy Brief #12-02 Amending the New Hampshire Constitution (CACR 12): Education Will No Longer Be Fundamental To The Citizens Of New Hampshire

By: Todd A. DeMitchell, Ed.D. - Professor, Department of Education and Lamberton Professor, Justice Studies Program, University of New Hampshire

Joseph Onosko, Ph.D. - Associate Professor of Social Studies Education, Director of Field Experiences, University of New Hampshire
Mark Paige, J.D., Ph.D. - Assistant Professor, School of Education, Public Policy, and Civic Engagement and Adjunct Professor, School of Law, University of Massachusetts-Dartmouth
Administration & Supervision ProgramDepartment of EducationUniversity of New Hampshire

Policy Brief #12-02March 2012

This Policy Brief asserts that the Concurrent Resolution Proposing Constitutional Amendment relating to education (CACR 12)[1] is inimical to the educational interests of the citizens of New Hampshire. The proposed constitutional amendment would remove education as a fundamental right and reduce education to a legitimate interest of the state, similar to most activities undertaken by government. Walking back the constitutional importance of education in order to overturn the Claremont decisions ill serves the interests of the State and the needs of its citizens.

I. Claremont I & II
In December of 1993, the New Hampshire Supreme Court handed down its decision in Claremont School District v. Governor[2] declaring the system of funding public education to be unconstitutional. The Supreme Court held that the New Hampshire Constitution (New Hampshire Constitution, Part II, Article 83 (1784) see appendix for text) imposes a duty on the State to “provide a constitutionally adequate education to every educable child in the public school in New Hampshire and to guarantee adequate funding.”[3] The Court continued, “The right to an adequate education mandated by the constitution is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State’s duty.”[4] The Supreme Court remanded the case, expressing confidence in the Governor and the legislature to fulfill their constitutional obligation to define an adequate education and to appropriately fund that adequate public education[5] “essential to the preservation of a free government.”[6] Governor Merrill, perhaps expressing less confidence in the judiciary, warned in his State of the State address that the Claremont decision “threatens to shake the social and economic foundations of this state.”[7]

By 1997, the Claremont case had worked its way back to the New Hampshire Supreme Court.[8] The trial court on remand found the education provided by the plaintiff school districts to be adequate and that the New Hampshire system—one dependent upon locally assessed property taxes—does not violate the New Hampshire Constitution.[9] The Supreme Court in Claremont II reversed the lower court’s decision, with only Justice Horton dissenting,[10] holding that the property tax levied to support public education was “a State tax and as such is disproportionate and unreasonable in violation of part II, article 5 of the New Hampshire Constitution.”[11] Essentially, the court ruled that the State has the responsibility for providing elementary and secondary education, which it places on the school districts as a local function. Therefore, the school districts must raise money through the collection of real estate taxes to pay for the schools. The Court gave the legislature and the Governor until the end of 1998 to find a remedy to expeditiously “fulfill the State’s duty to provide a constitutionally adequate public education and to guarantee adequate funding in a manner that does not violate the State Constitution.”[12]

The Supreme Court held, “[e]ducation is a duty of the New Hampshire state government “expressly created by the State’s highest governing document, the State Constitution.”[13] Furthermore, the Supreme Court asserted that public education is not only different from other governmental services, its role is critical “in developing and maintaining a citizenry capable of furthering the economic, political, and social viability of the State.”[14]

This strong statement about the importance of public education echoes the position of the United States Supreme Court in the landmark case Brown v. Board of Education.[15] The High Court wrote:

Today, education is perhaps the most important function of state and local
governments . . . . In these days, it is doubtful that any child may reasonably
be expected to succeed in life if he [or she] is denied the opportunity of an
education. Such an opportunity, where the state has undertaken to provide it,
is a right, which must be made available to all on equal terms.[16]

Similarly, the United States Supreme Court in Plyler v. Doe asserted, “We have recognized the public schools as a most vital civic institution for the preservation of a democratic system of government and as the primary vehicle for transmitting the values on which our society rests.”[17] The New Hampshire Supreme Court’s position on public education and the responsibility of state government to provide for that education squares with the United States Supreme Court pronouncements.

In short, our nation’s highest court and the New Hampshire Supreme Court view education as critically important in providing equality of opportunity for individual economic and social advancement and to preserve the very foundations of our democratic institutions.[18] Because of the importance of education to its citizens and our democratic way of life, the New Hampshire Supreme Court declared education to be a “fundamental right.”[19] This decision is critical because any action taken by government that diminishes a fundamental right of its citizens must be reviewed by the judiciary using a “strict scrutiny” analysis, the most stringent test for government action under the Equal Protection Clause.

The New Hampshire Supreme Court in Claremont I and II held that the children of our state have a constitutional entitlement to receive an adequate education guaranteed by adequate funding, and that the constitutionally protected right to an adequate education is fundamental requiring the most exacting judicial review of governmental actions that may abridge that right.[20] However, before we briefly review education as a fundamental right of citizens, we will briefly look at the response to the Claremont decisions that led to the current proposed constitutional amendment.

II. Response to School Finance Litigation
The Claremont cases are part of a body of cases in which the plaintiff claims that the state legislature has violated the state’s constitutional duty pertaining to financially support public education. Because every state has a state constitutional provision providing for the establishment of a public school system,[21] school finance litigation has the potential to be a nationwide legal issue.[22] Constitutional issues of school finance have “evolved over time, issues of equity in funding, have given way to increased attention to funding adequacy and, more recently, accountability.”[23]

Judicial review of school finance litigation raises a question of whether a state legislature has met its constitutional duty to provide for and support public education.[24] Serrano v. Priest ushered in the modern era of school finance reform litigation and changed the way California funds public education.[25] Since Serrano, forty of the 50 states joined California with school finance litigation challenging their funding structure for public education.[26] Some states such as New Jersey, California, North Carolina, Connecticut, Tennessee, and New Hampshire have had multiple cases brought challenging their state’s school finance system.

A victory for the plaintiffs in school finance cases typically compels the legislature to take some action to remedy the constitutional injury. This is how the separation of powers is supposed to work: a system of checks and balances designed to serve the people and preserve liberty, and is an essential structure of our system of government. Consequently, responses to school finance reform litigation are to be expected, but the importance of maintaining the proper checks and balances between the branches of government is imperative.[27]

Opponents to the Court’s Claremont II ruling cast the judiciary as the branch that needed to be checked and its power balanced. Then Senator and former New Hampshire Governor, Judd Gregg, in his response to Claremont II (1997) stated, “for a court to usurp the legislative prerogative is to flirt with the threat of despotism that led to the Boston Tea Party and a call for independence that began our nation.”[28] Richard Lessner, in an editorial in the state’s influential newspaper, The Union Leader, characterized the Claremont II decision as the “tyranny” of “[t]his monstrous regiment of Judges!”: “Americans—Granite Staters—you no longer live in a free country. You are ruled by monarchs in black robes, arrogant Hapsburgs elected by no one and answerable to no one.”[29]

Two themes emerged from the opponents’ responses to the court’s decision: 1) the New Hampshire Supreme Court violated the traditional separation of powers and 2) the public should adopt a constitutional amendment to sidestep the court’s decision. The implication is that that the judges did not have the authority to find the present system of funding unconstitutional because it called for a tax remedy. The unstated argument was that this is what the people wanted as embodied through legislative action. Lessner, in The Union Leader’s editorial, stated, “What the Legislature can and should do is refer this to the people of New Hampshire in the form of a constitutional question.”[30] The remedy, in other words, was to change the Constitution, not to meet the requirements of the Constitution.
III. Constitutional Amendments
The call for a constitutional amendment to undo the Claremont decisions was first heeded by State Senator Jim Rubens in early 1998.[31] His amendment would have made education a local responsibility instead of a state responsibility. The amendment failed to win legislative approval to take to the voters. Legislative responses to judicial decisions seeking to amend the constitution are rare and not very successful. For example, after Brown v. Board of Education, Alabama in 1956, sought to derail the desegregation decision by passing a constitutional amendment arguing that the will of the people must prevail; however, the constitutional amendment was declared unconstitutional.[32] Similarly, Kansas proposed constitutional amendments limiting the authority of courts in school funding cases[33] and Missouri introduced a bill in its state senate during a school funding challenge that prohibited future judicial intervention in school funding disputes.[34] To date, these legislative restraints on judicial authority have failed.

Unfortunately, in New Hampshire the legislative response to the Claremont decisions seeks to follow the same path of not correcting the constitutional problem, but rather change the constitution to meet the preferred outcome. The latest constitutional amendment once again seeks to rewrite the relationship between the state and its citizens by altering its responsibilities for providing and financing public education. The amendment, as of March 16, 2012, appears below.

Be it Resolved by the House of Representatives, the Senate concurring, that the
Constitution of New Hampshire be amended as follows:
I. That the second part of the constitution be amended by inserting after article 5-b the following new article:
[Art.] 5-c [Public Education.] In fulfillment of the provisions with respect to education set forth in Part II, Article 83, the legislature shall have full power and authority and the responsibility to define reasonable standards for elementary and secondary public education, to establish reasonable standards of accountability, and to mitigate local disparities in educational opportunity and fiscal capacity. Further, the legislature shall have full power and authority to determine the amount of, and the method of raising and distributing, state funding for public education.

This amendment does two things. First, it removes education as a fundamental right of its citizens by the insertion of the word “reasonable.” This reduces the quality of the right to an education moving it from a fundamental right, such as voting, to a legitimate right, such as driving. This diminishment of the right to an education—the real target of this amendment—will limit future court deliberations on state education funding issues to the lesser “rational basis” legal test rather than “strict scrutiny analysis.” This would not remove the courts from considering whether government has violated a right, but it greatly increases the chances of the state prevailing in the suit.[35] Second, it applies the requirement for the State to fund education to only those students where disparity in educational opportunity and fiscal capacity exist. Under this amendment, the state discharges its responsibility to educate all of its youth only through targeted aid to some.

From Strict Scrutiny Analysis to Rational Basis: Tipping the Scales toward Legislative Power

The amendment removes education as a fundamental right. Proponents crafted this language to make it easier for the state to win Claremont style lawsuits. Because the Supreme Court concluded in the Claremont decisions that education is a fundamental right, the court used strict scrutiny analysis to review the actions of the State..[36] This is a stringent test protecting any right that is fundamental for its citizens. To pass this test the State must show that its objective is compelling and the means used to achieve the objective are necessary. This test sets a high bar for government. However, CACR 12 sets a very low bar by (a) reducing the value of education to only a “legitimate” state objective, and, concomitantly, (b) reducing the level of scrutiny the courts apply to state actions regarding education.

This test is called rational basis and is the most permissive or lenient test that the courts apply to the constitutionality of state laws. Unlike strict scrutiny analysis, rational basis places the burden of proof of establishing unreasonableness on the plaintiff who is challenging the state’s action. It is the most deferential test to government requiring only a minimum level of judicial analysis. Under strict scrutiny the governmental objective must be compelling and its actions must be necessary to achieve the objective, whereas rational basis only requires that the objective be legitimate (not compelling) and the means to achieve it are rational (rather than necessary). Which of the two tests is used is important to the outcome of the litigation. Clearly, the sponsors of the amendment want to reduce the level of judicial scrutiny of their school funding legislation.

An example of a court’s use of rational basis is found in a 1982 challenge to New York’s system of funding public education. The challenge failed because the 1894 New York constitution only required that the state provide a “sound basic education.”[37] New York’s highest court used the rational basis test because education was only considered to be a legitimate and not a fundamental right of its citizens. However, the dissent argued that education was fundamental to the future of the State and its citizens. Justice Fuchsberg argued, “without education there is no exit from the ghetto, no solution to unemployment, no cutting down on crime.”[38] It is the “great equalizer.”[39]

In Claremont the New Hampshire Supreme Court found that the State’s constitution, which dates back to 1784, confers upon its citizens a fundamental right to receive an education and a concomitant responsibility upon the state to provide that education. CACR 12 seeks to rescind that fundamental right established 228 years ago. CACR 12 takes decisive and definitive action to eliminate education as a fundamental interest of the citizens of New Hampshire.Diminishing the importance of education is particularly troubling given education is fundamental to a person’s prospects for success. The values that we profess shape the actions that we take. If education is not constitutionally fundamental, it becomes no more important than deciding where to place a traffic light or what requirements are necessary to get a fishing license. Our longstanding commitment to equality of educational opportunity necessitates that education remain a fundamental interest for our great state of New Hampshire.

Uncertainty and New Rounds of School Finance Litigation

Second, CACR 12 transfers the thorny issue of how best to pay for a constitutional adequate education to an equally thorny issue what and how much constitutes a “disparity” in educational opportunity and fiscal capacity. How many missing programs or activities constitute a disparity of educational opportunity? How far must the disparity of fiscal capacity be from the designated non-disparity point? Will one standard deviation from the designated equalized assessed valuation define and trigger disparity? The language in CACR 12 creates great mischief in deciding what disparity means, how is it applied, and whether the definition and application of what constitutes a disparity is even reasonable or rational.

CACR does not solve important problems; it exacerbates them and continues the uncertainty over education funding in New Hampshire. More time and limited resources will be chewed up in future school finance litigation. The importance of education to the citizens and future of the State is diminished by enshrining in the New Hampshire Constitution an espoused value that education is not fundamental. Senator Bradley got it wrong when he stated that “[a]nything is going to be a marked improvement on where we are today.”[40] CACR 12 is not an improvement; education as a fundamental right is reduced and future litigation is forecast by its passage. It is curious and disconcerting that the legislature drafted legislation to increase support for private and home-school education [41] at the same time that it proposes CACR 12, which reduces the fundamental value of education for those who stay.

Education is fundamental to the future of the individual and it is fundamental to the future of our democratic society.[42] We must not reduce its significance through a constitutional amendment. The constitution is crucial in defining what is important to society. The framers of our constitution deliberately made it difficult to alter the values embodied in the document. They were prescient that the head winds of a given time should not require a major tack in the direction of the ship of state. A major change of course must receive the highest level of analysis and sober reflection. After careful consideration, CACR 12 does not serve the best interests of the people of New Hampshire.


Part II, Article 83 of the New Hampshire Constitution
Adopted in 1784

Art. 83 Encouragement of Literature, etc.; Control of Corporations,
Monopolies, etc.

Knowledge and learning generally diffused through a community, being essential to the preservation of a free government; and spreading the opportunities and advantages of education through the various parts of the country, being highly conducive to promote this end; it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools, to encourage private and public institutions, rewards, and immunities for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and economy, honesty and punctuality, sincerity, sobriety, and all social affectations, and generous sentiments among the people.

The views expressed are those of the authors and do not necessarily reflect the views of the Program, the Department, or the University.
[1 CACR is the acronym for Constitutional Amendment Concurrent Resolution.
[2 138 N.H. 183 (1993).
[3 Id. at 184. “An obvious starting point in interpreting part II, article 83 is to determine what the particular words used meant in 1784” id. at 187. For example, “‘Cherish’ meant ‘to support, to shelter, to nurse up’” id. Thus, the court used a strict constructionist approach to its constitutional review.
[4] Id. at 192.
[5] See Deborah A. Verstegen &Terry Whitney, From the Courthouses to Schoolhouses: Emerging Judicial Theories of Adequacy and Equity, 11 EDUC. POL’Y 330, 349 (1997) (“The high courts have found that today an adequate education is defined by the best system: it is a quality system, it provides excellence in education, and it equips all children with certain competencies that allow them to be citizens and compete in a global marketplace.”).
[6] Claremont, 138 N.H. 183 at 193.
[7] M. Sommerfield, N.H. Governor Comes Out Against Broad Tax for Schools, EDUC. WEEK 12 (Jan. 19, 1994).
[8] Claremont School District v. Governor, 142 N.H. 462 (1997) (hereinafter Claremont II).
[9] Id. at 465-66.
[10] The dissent after characterizing the “current financing matrix for education [as] far from desirable” asserted:
I should not involve myself in social engineering, no matter how worthy the
cause, when the constitution and the decisions of those charged with the
obligation of forming social policy are compatible. This is not to say that I
infer an absence of regard in the decision of the majority for the proper role
of this court.
Id. at 477 (Horton, J. dissenting).
[11] Id. at 466.
[12] Id. at 477.
[13] Id. at 469.
[14] Id.
[15] 347 U.S. 484 (1954).
[16] Id. at 491.
[17] 457 U.S. 202, 211 (1982).
[18] Claremont Sch. Dist. v. Governor, 142 N.H. at 472.
[19] Id. at 474. The Dissent does not disagree with this proposition, but questions its applicability to the case. Justice Horton wrote, “[The Majority] finds the right to be fundamental. I do not quarrel with this characterization, but note that its materiality is based on the plaintiffs' claim of a violation of equal protection.” Id. at 482.
[20] Id. at 472.
[21] See, e.g., Or. Const. art. VIII, § 3; Iowa Const. art. IX, § 3; Tenn. Const. art XI, § 12.
[22] See, e.g., Lobato v. Colorado, 218 P.3d 358 (Colo. 2009); Committee for Educ. Equality v. Missouri, 294 S.W.3d 477 (Mo. 2009) Scott v. Virginia, 443 S.E.2d 138 (Vt. 1997); Rose v. Council for Better Educ., 790 S.W.2d 186 (Ky. 1989); McDaniel v. Thomas, 285 S.E.2d 156 (1981); Robinson v. Cahill, 303 A.2d 273 (N.J. 1973).
[23] John Dayton & Anne Dupree, School Funding Litigation: Who’s Winning the War?, 57 VAND. L. REV. 2351, 2354 (2004).
[24] See, e.g., McDuffy v. Secretary of Education, 615 N.E.2d 516, 517-518 (Mass. 1993)(a question before the court was whether the education clause in that constitution imposed a duty on the state, or was merely “hortatory” or “aspirational” The court concluded it was an affirmative duty, and “the only duty imposed on the executive and legislative branches.”).
[25] 487 P.2d 1241 (1971). Commonwealth v. Dedham, 16 Mass. (1 Tyng) 141, 146 (1819) is an example of an early case involving school finance litigation. The issue was one of whether the town of Dedham was adequately financing its public schools.
[26] William E. Thro, School Finance Litigation as Facial Challenges, 272 ED. LAW REP. 687, 687-89 (2011).
[27] Courts play an important role in resolving school finance disputes and ensuring that a state meets its obligations. See, e.g., Mark A. Paige, Book Review: Courts and Kids, 117 American Journal of Educ. 4, 603-606, (2011).
[28] Judd Gregg, Supreme Court Ruling ‘Arrogant,’ ‘Absurd’, THE UNION LEADER A18 (Dec. 19, 1997).
[29] Richard Lessner, NH Can No Longer “Live Free or Die” If Ruled by Black-Robed Monarchs, THE UNION LEADER C1 (December 19, 1997).
[30] Id. (“If the black-robed oligarchs in Concord are offended by the system of taxation the people of New Hampshire have freely chosen as an affront to the constitution--then let us amend the constitution and send the court packing.”) Id.
[31] Jim Rubens, A N.H. Schools Plan Without State Taxes, PORTSMOUTH SUNDAY HERALD D3 (January 4, 1998).
[33]David J. Hoff, Kansas Lawmakers Agree on Spending Plan, EDUC. WEEK 23 (July 13, 2005). See also, Richard E. Levy, Gunfight at the K-12 Corral: Legislative vs. Judicial Power in the Kansas School Finance Litigation, 54 U. KAN. L. REV. 1021 (2006).
[34]Robert C. Johnston, Bar on Finance Cases Sought, EDUC. WEEK 17 (March 2, 2005).
[35] For example, a supporter Senator Jeb Bradley stated, the amendment would “ratchet back without completely dissolving the court’s ability to rule on any legislative outcomes. Joey Cresta, Bradley: Reform School Funding, PORTSMOUTH HERALD A4 (March 1, 2012).
[36] Strict scrutiny analysis is also triggered when a suspect classification is created by state action. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Loving v. Virginia, 388 U.S. 1 (1967).
[37] Brd. of Educ. v. Nyquist, 439 N.E.2d 359, 369 (N.Y. 1982).
[38] Id. at 371 (Fuchsberg, J., dissenting).
[39] Id.
[40] Cresta, supra note 35 at id.
[41] See HB 1607 and SB 372.
[42] It must be noted that the United States Supreme Court in San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) did not find that education was a federal fundamental right, nor was wealth found to be a suspect classification. There is no education clause in the United States Constitution. This case shifted school finance cases to the state courts for resolution because education is commonly considered to be federal interest, a state responsibility, and local function. However, the High Court opined, the “need is apparent for reform in tax systems which may well have relied too long and too heavily on local property tax.” Id. at 58-9.

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