How a school-choice request in N.H. led to questions about state board’s authority – The Boston Globe

“We didn’t want to do this,” Lempster Superintendent James M. Lewis said, “but this is the route we have available to us now.”

If the Lempster School District prevails, this dispute could help to clarify the limits of the state board’s authority, according to Barrett M. Christina, executive director of the New Hampshire School Boards Association.

And if the state’s legal team prevails?

“I think it would give the state board of education unfettered authority to overrule decisions made at the local level,” Christina said.

Last fall, Leite asked the Lempster School District to sign a tuition contract with Mount Royal Academy, a Catholic school in nearby Sunapee. That way, high school students from Lempster — which doesn’t have a high school of its own — could opt to attend the private school at taxpayer expense.

The district already has contracts with a few public high schools in the area. Leite sought to add Mount Royal to the menu of options. That has been permissible since 2021, when state law was changed to allow districts that lack a public school for a particular grade level to approve tuition contracts with private religious schools.

As of last spring, a couple of students were already attending Mount Royal through such a tuition arrangement with the town of Croydon, according to headmaster Derek Tremblay.

Lempster’s school board met with Mount Royal representatives in January to discuss Leite’s request, but decided in February not to pursue the contract, according to school board meeting minutes. The board voiced concerns about the narrower scope of services that Mount Royal provides, particularly with regard to special education.

“After all consideration, the board said, ‘You know … it doesn’t match with what we’re looking for,’” Lewis said. “And the board has that right.”

Leite, however, didn’t give up and filed the appeal.

The state scheduled hearings on the matter, but then the Lempster school board filed suit in April, claiming the state board has a pattern of asserting jurisdiction where it legally has none, forcing public schools to spend time and money on appellate processes that lack any basis in state law.

“Sometimes you have to say ‘no,’ and this is a situation where we’re not going to roll over,” Lewis said.

The presiding judge granted a preliminary injunction on July 30, with a ruling that suggests Lempster’s claims seem potentially persuasive.

State claiming very broad authority

Lawyers in the attorney general’s office, who represent the state board, have refuted the Lempster School District’s allegations. They argue state lawmakers clearly intended the state board to supervise, manage, and direct local school districts. They cite a law that gives the state board jurisdiction over a range of appeals.

One of those lawyers, Rory S. Miller, argued in a court filing in May that the state board has “complete authority” to act when disputes arise between individuals and school districts unless state law offers a specific command to the contrary. That, he added, means the state board has the discretion to direct public schools to approve tuition agreements with private schools on an appeal-by-appeal basis.

But that argument drew a skeptical line of questioning from Merrimack County Superior Court Judge Daniel I. St. Hilaire during a July 31 hearing on a motion to dismiss Lempster’s lawsuit.

“How can they upend a decision by a local school board and force them to enter into a contract?” he asked. “I don’t understand that.”

Miller replied that local school boards are subordinate entities that must obey the state board’s edicts. That’s how it’s been in New Hampshire for more than a century, he said.

St. Hilaire has yet to rule on the state’s motion to dismiss, but his order granting a preliminary injunction rebuffed key pieces of Miller’s case. He wrote that the Lempster School District can pursue contracts “in whatever way it wishes,” that the district was “under no obligation to comply with Leite’s request,” and that the attorney general’s office has cited laws that don’t actually give the state board authority to review this particular decision.

Christina, of the school boards association, said the state Board of Education clearly has legal authority to hear certain types of appeals, but the attorney general’s office is advancing an overbroad argument that would give the state board too much discretion.

Christina said the state board — all seven members were appointed by Republican Governor Chris Sununu and confirmed by the state’s five-member Executive Council — has taken an expansive view of its power in the past six or seven years. Members often seem to side with appellants just because they dislike what the local school board decided, he said.

“Anybody with any complaint seems to be getting their way, regardless of the merits or legalities of the case before the state board,” he said.

Andrew C. Cline, chairman of the state board, disputed that claim. He said the state board has ruled against parents several times because what they requested would have been inappropriate for the state board to impose.

“The board cannot and does not exceed the authority given to it by statute, and we consult with legal counsel in every contested case between a parent and school district to make sure we do not exceed our granted authority,” he said in an email.

Cline noted that parties can file an appeal in court if they believe the state board has overstepped.

But the appellate process itself can put resource-constrained school districts in a tough spot, Christina said.

“They can appeal an unfavorable decision from the state Board of Education, but that’s time, effort, money,” he said.

Religious discrimination not the crux

During the July 31 court hearing, Leite told the judge she assumes the Lempster school board’s refusal to ink a contract with a private religious school must be discriminatory and based on the board members’ personal beliefs.

But others said the school board members had asked questions and articulated concerns unrelated to Mount Royal’s religious affiliation.

“I don’t think the religion aspect had anything to do with it,” Superintendent Lewis told The Boston Globe.

Tremblay, the Mount Royal headmaster, said the Lempster school board members were “cordial” and “sincere” when he met with them in January.

“It seemed to me like they were asking all the questions that really mattered to them,” Tremblay told the Globe, “and I don’t remember religion being a dominating influence. … I don’t even remember the question being asked.”

Leite, who has not granted the Globe’s interview requests, also told the judge she doesn’t believe it’s necessary for her family to pursue any alternative funding arrangement, such as by asking for a “manifest educational hardship” exception or tapping into the state’s “education freedom accounts” program.

“I am not looking for any handouts,” she said.

Under the EFA program, a family that earns up to 350 percent of the federal poverty level — that’s about $109,000 for a family of four — can use money the state would have spent on their child’s public school education to cover costs associated with private school or home-schooling. That EFA funding averaged $5,235 per student last year, according to the New Hampshire Department of Education.

Tuition for high school students at Mount Royal will be $10,700 this school year, Tremblay said.

Parents who send their children to Mount Royal do so knowing the school doesn’t have the same level of resources they could find at a government-run school, Tremblay added. The academy doesn’t have a school psychologist or specialists in speech or occupational therapy, he noted.

“We will not be able to support as much as you could receive in a public school,” he said, “but we’re certainly willing to do everything we can.”

The dispute between the Lempster School District and the state board is happening as policymakers have debated whether and how to expand New Hampshire’s school-choice policies, while also grappling with court orders that deemed major components of the state’s overall school funding apparatus unconstitutional.

The leaders who voters select in November could bring big changes.

Sununu’s successor will decide who to appoint to the state board of education as incumbents finish their four-year terms.

Exactly how much power those appointees can wield over locally elected school officials could depend on how the courts decide Lempster’s case.

Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter.