Spring 2016 | Volume 8, No. 2

Our mission is to help our clients improve education for all children - through sound advice and advocacy when possible - through skillful litigation when necessary.

In This Issue

1 New Hampshire Supreme Court Issues Controversial Decision on Teacher Non-Renewal

6 Managing Medical Marijuana in Schools: What Schools Need to Know

10 Who Walks the Dog? Legal Update on Service Animals in Schools

12 Tips For Problem-Free Problem Solving

14 Recent Amendments to the McKinney-Vento Homeless Assistance Act

17 What Every Superintendent Should Know About Tax Exempt Bonds

New Hampshire

New Hampshire Supreme Court Issues Controversial Decision on Teacher Non-Renewal

James O’ShaughnessyJim O’Shaughnessy represents school districts and other educational institutions throughout New Hampshire.

Meghan GlynnMeghan Glynn is a member of the School and Education Group, where her practice focuses on the areas of general school law, special education, and school employment and labor law.

On April 7, 2016, the New Hampshire Supreme Court issued its decision in an important teacher

non-renewal case, Appeal of Farmington School District.1 In the case, Farmington High School guidance counselor Demetria McKaig was non-renewed for the 2013-2014 school year following an emotionally charged incident in which McKaig and the building principal fundamentally disagreed over how to handle a student’s pregnancy and desire to have an abortion. The decision is significant in part because of its lengthy and passionate dissent (it is uncommon for the state Supreme Court to issue a divided opinion), but mostly because it concerns the controversial and deeply political issue of abortion rights. The decision is also the first non-renewal opinion issued by the Supreme Court in nearly five years, and one of only seven issued over the past 25 years. The state Legislature has amended the teacher non-renewal statute, RSA 189:14-a, many times over the years, including a significant overhaul in 2011. This article describes the Court’s decision, discusses the case, and provides some practical advice to school districts going forward.

The Appeal of Farmington DecisionIn November of 2012, McKaig was informed by a fifteen-year-old student (“Student A”) that Student A was pregnant and that she wanted to terminate the pregnancy. McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused, stating that she and her boyfriend did not want Student A’s mother to know because they were afraid for their safety.

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School Law Practice GroupDemetrio F. Aspiras, III†S. Campbell Badger*Michael L. Buescher*Anna B. Cole†Isabel B. Ekman*Peter C. Felmly*†Erin R. Feltes*†Meghan S. Glynn†Eric R. Herlan*†Melissa A. Hewey*†Greg Im*†David M. Kallin*Jeanne M. Kincaid*†Hannah E. King*Laurel A.V. McClead*†Jeana M. McCormick*Elek A. Miller*James A. O’Shaughnessy†Agnieszka A. Pinette*Keriann Roman†Daniel J. Rose*†Bruce W. Smith*Richard A. Spencer*†Christopher G. Stevenson*E. William Stockmeyer*†Amy K. Tchao*†Tom Trenholm*Matthew H. Upton†Gerald M. Zelin†

ConsultantsAnn S. ChapmanPolicy and Labor Relations

Michael J. Opuda, Ph.D.Special Education

Penelope Wheeler-AbbottPolicy and Human Resouces

Of CounselDonald A. Kopp*Hugh E. G. MacMahon*William L. Plouffe*Harry R. Pringle*

* Admitted in Maine† Admitted in New Hampshire

The School Law Advisory is intended to provide helpful information on topics discussed, but is not to be construed as legal advice on specific issues.

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McKaig researched Student A’s legal options and found New Hampshire’s parental notification and judicial bypass laws for minors seeking an abortion, RSA 132:33-34. These laws permit Student A to bypass New Hampshire’s requirement that a parent receive notice 48 hours prior to a minor having an abortion, if the minor brings a case in superior court and, after a hearing with a superior court judge, the judge determines that the minor is mature and capable of giving informed consent to the proposed abortion. Armed with this knowledge, McKaig and the other guidance counselor at the school met with the principal and other school staff to discuss Student A’s situation. The principal wanted to inform Student A’s mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. Following the meeting, McKaig spoke with an attorney from the New Hampshire Civil Liberties Union (“NHCLU”), and provided the attorney with Student A’s initials, age, and grade. The attorney advised McKaig that she believed the judicial bypass law protected the confidentiality of Student A’s pregnancy and the fact that she was contemplating an abortion. As McKaig gathered information from the NHCLU attorney, the building principal told the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy in two days. The same day, McKaig told the principal about her conversation with the attorney and urged the principal to speak with the attorney to discuss Student A’s rights. Although it was ultimately the attorney who initiated the conversation, the principal and the attorney did speak, and the principal stated that he did not feel he was precluded from telling Student A’s mother about the pregnancy.

Following that conversation, the attorney sought a temporary restraining order against the principal in superior court to prevent him from speaking to Student A’s mother. The school district’s attorney agreed that the principal would not contact Student A’s mother until a hearing was held. The day before the hearing, Student A obtained a judicial bypass order from the superior court, permitting her to get an abortion without parental consent. The following day, the Superior Court granted the petition for the temporary restraining order. Four months later, McKaig received a notice of nonrenewal from the superintendent. McKaig requested the reasons for her nonrenewal pursuant to her rights under RSA 189:14-a. She was told that she was not renewed for three reasons: 1) insubordination; 2) breach of student confidentiality; and 3) neglect of duties. Prior to receiving her notice of

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non-renewal, McKaig had not been advised by any district official that she had been insubordinate in connection with the Student A matter, or that she had breached student confidentiality or neglected her duties. A board hearing was held on McKaig’s nonrenewal, and the local board upheld the nonrenewal on the grounds of insubordination and breach of confidentiality. McKaig then appealed to the state board of education (“State Board”), which found that the local board’s decision was “clearly erroneous” under RSA 189:14-b, II. The State Board reversed the local board’s decision to uphold McKaig’s nonrenewal, but did not order reinstatement or any other remedy. The parties subsequently cross-appealed to the New Hampshire Supreme Court. The Court reviewed the State Board’s decision under RSA 541, which requires that the Court accord a significant amount of deference to the State Board’s decision. Under RSA 541, the Court could only set aside the State Board’s order if, by a clear preponderance of the evidence, the State Board’s decision was unjust or unreasonable. The Court also applied for the first time the “clearly erroneous” standard that the State Board used to review the local board’s decision. Under this standard, the State Board must uphold the local board’s decision unless it was “clearly erroneous,” meaning that the decision must be upheld unless findings of fact are unsupported by evidence and inconsistent with applicable law. In this case, the State Board found that the local board’s decision was clearly erroneous, and the Supreme Court agreed. The Court held that the record did not support the district’s contention that McKaig was insubordinate because of her actions in violation of the wishes of the building principal. School policy only required McKaig to follow clear directives of the building administrator, and the State Board found that no clear directive was issued to McKaig to stop advocating on behalf of the student. Further, the Court agreed with the State Board that it was clearly erroneous for the local school board to find that McKaig had breached student confidentiality. The State Board concluded that McKaig’s disclosure to the NHCLU attorney regarding Student A’s initials, age, and grade was

covered under an exception to the Federal Educational Rights and Privacy Act (“FERPA”), which is typically only available to educational institutions and agencies. The Court held that the exception had been incorporated into a district policy by reference and therefore extended to all employees of the district. The exception permits release of confidential information under certain emergency circumstances, and the State Board found that, because Student A was concerned for her safety if her mother found out about the pregnancy, McKaig was justified in releasing the information to the attorney in order to protect Student A. Because the Court agreed with the State Board’s conclusion that the local board’s decision was “clearly erroneous,” it upheld the State Board’s decision to reverse the nonrenewal. The Court ordered that McKaig be reinstated and sent the case back to the State Board to decide whether McKaig is entitled to back pay and benefits. One justice on the Supreme Court heartily disagreed with the opinion and issued a strongly-worded dissent arguing that the Court substituted its own judgment for the judgment of the local board when it upheld the State Board’s decision.2

Discussion and Practical PointersBefore we delve too deeply into what we can learn from the decisions made in this particular case, we want to establish a couple of caveats. First, the opinion is sui generis (i.e. unique). Thus, the Court’s analysis was “confined to the particular policies of the Farmington

Perhaps the most unsettling part of the Supreme Court’s conclusion – from the perspective of an

attorney – is that because the district incorporated FERPA into its confidentiality policy, somehow the exceptions available to school district institutions

were now available to employees.

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School District and their application to a unique set of facts.” In other words, the decision should be interpreted narrowly because it is based on the specific facts and circumstances of this case. Second, the authors are mindful that hindsight is often 20/20. This case presented all parties with a unique set of facts and challenges, and it would be far too easy to cast judgment on the parties and claim things should have been done differently. Thus, it is our intent here to provide school districts with a few useful and practical pointers to consider when conducting teacher non-renewals in the future, in light of this decision.

Fairness and NoticeThe Court is quick to point out in the majority decision that McKaig never received notice that her conduct would be deemed insubordination or would breach student confidentiality, either as the incident with Student A unfolded or after it had concluded. The Court is also quick to note that four months went by before McKaig received her notice of nonrenewal. While the nonrenewal statute no longer requires school districts to provide employees with notice and an opportunity to correct improper conduct, the fact that McKaig was never informed that her conduct would be, or was, deemed a violation of District policies seems to have undermined the credibility of the school district’s position when, four months later, it asserted policy violations as the basis for her nonrenewal. Whenever possible, it is good practice to address misconduct in writing as close to the time of the incident as possible.

“Clearly Erroneous” Does Not Mean School Board DiscretionWhen reviewing a local school board’s decision to uphold a superintendent’s nonrenewal decision, the State Board and the Supreme Court will look at whether the evidence (facts) presented at the hearing reasonably support the local school board’s findings and whether the decision is consistent with applicable laws and school district policies.

Draft Clear Policies and Know Them WellThe State Board and the Supreme Court will interpret local policies and state and federal laws and regulations de novo (i.e. starting from the beginning, or anew). Draft clear policies to avoid ambiguities that the State Board and courts can interpret against the district’s interests, and make sure you are familiar with a policy before using it as the basis for a termination or nonrenewal.

Give Employees Clear Directives in WritingOne of the facts in this case that caused much disagreement was the extent to which the principal provided a clear directive to McKaig. The simplest way to resolve this type of confusion is to provide employees with clear directions in writing.

Consider Revising Your District’s Confidentiality PolicyPerhaps the most unsettling part of the Supreme Court’s conclusion – from the perspective of an attorney – is that because the district incorporated FERPA into its confidentiality policy, somehow the exceptions available to school district institutions were now available to employees. This spring would be a good time to consider revising your confidentiality policies to include clear prohibitions against disclosure of student personally identifiable information, rather than simply incorporating a reference to FERPA.

Reinstatement is a Proper RemedyIt is now clear from this decision that reinstatement from a nonrenewal is a lawful remedy within the jurisdiction of the State Board.

Consider the Front Page HeadlineThis case involved deeply held political and personal views on a controversial issue. Before proceeding with discipline or nonrenewal of a teacher, a school district should ask: What will be the front page headline on the

School Staff Training Video Suitefor the 2016-2017 Academic Year

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case once it is resolved through the courts? Are there significant and timely political or social viewpoints that may work against the district’s interests?

ConclusionAs a result of this recent decision, administrators will be rethinking the process used to non-renew teachers. It is clear that the State Board may have a bigger role to play in reviewing not only the facts of the underlying school board decision, but also the meaning and application of local school district policies. While school districts can find some comfort in knowing that this decision is limited to its facts, school district administrators often face similar circumstances when deciding whether or not to non-renew a teacher who has engaged in misconduct in violation of school district policy. The only way for school districts to successfully non-renew a teacher and comply with RSA 189:14-a is to ensure that the nonrenewal process is fair and consistent with school district policies and the law. The Appeal of Farmington School District decision, though troubling in some ways, is a strong reminder of how important it is to get the nonrenewal process right. Indeed, it will serve as a good resource for school district administrators and school boards in the future.

Endnotes

1 No. 2015-0032, ___ NH __ (Apr. 7, 2016)2 Justice Lynn stated that by choosing to become a

litigant against the building principal in the temporary restraining order proceedings, McKaig was clearly insubordinate in violation of school policies. Justice Lynn also disagreed with the Court’s conclusion that the local board was “clearly erroneous” in finding that McKaig had breached student confidentiality, noting that the NHCLU attorney who filed the lawsuit on Student A’s behalf had never even spoken to the girl, and that McKaig could have discussed Student A’s situation with the attorney without revealing any identifying information and merely relayed it to Student A. Justice Lynn stated that the Court had tossed legal principles aside because of the hot-button topic presented to it.

New Hampshire law requires schools provide training to staff in the following areas:

• Freedom of Access• Restraint and Seclusion • Gender Equity • Sexual Harassment• Bullying and Cyberbullying • Student Confidentiality (FERPA)

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