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How the Sununu Admin. Illegally Changed Remote Learning Requirements in New Hampshire

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Over the last three weeks, many blue-state leaders have rescinded various COVID-19 health measures or allowed them to expire. As these measures disappear, many people are drawing comfort from the possibility that this “pandemic” is drawing to a close, and their lives may finally be returning to normal.

While that may be the case, however, we need to take note of what we lost throughout this two-year ordeal and learn how to prevent our federal, state, and local governments from implementing these measures again in the future.

Over the last two years, I spoke with hundreds, if not thousands, of people in connection with the lawsuits I handled in various states and other educational endeavors.  Many people knew what was happening was wrong, but they could not articulate why it was wrong.  For example, many people knew a school district doesn’t have the right to force their children to wear masks, but they could not explain why or on what basis that was true.

There are concrete legal explanations that provide insight as to how and why what our governments did was illegal and wrong.  Nowhere did I live and breathe these atrocities more than in New Hampshire, where I filed approximately 15 lawsuits challenging everything from Governor Chris Sununu’s state of emergency declaration to school district mask mandates.

Let’s start, first, with Governor Sununu’s closure of New Hampshire public schools in 2020.  This article is the first of two parts in which I will explain how the Sununu administration and the New Hampshire Department of Education (DOE) colluded to use COVID-19 to secretly eliminate limits on the remote education of children in the state, fundamentally changing education New Hampshire forever.

In this article, I will describe the existing legal requirements for public education and how DOE made an illegal “emergency” amendment to its rule limiting remote instruction in New Hampshire public schools.  In the second part of this article, I will explain how DOE attempted to justify this illegal change, the fact that Governor Sununu knew about it, and how this change has impacted children in New Hampshire.

Learning Requirements in New Hampshire Public Education

For over 200 years, New Hampshire has recognized its duty to provide for the proper education of children in the state.  In a case titled Claremont School District v. Governor, decided over 25 years ago, the New Hampshire Supreme Court acknowledged that public education is a cornerstone of its democratic system, and “a constitutionally adequate public education is a fundamental right.”

The New Hampshire state government ignored these requirements, however, during the outbreak of the Coronavirus.  Invoking a feigned “public health” crisis under an unconstitutional delegation of legislative power, Governor Sununu exceeded his statutory emergency powers, swept aside this Constitutional right, and essentially canceled the rest of the 2019-2020 school year.

Beginning in March 2020, the Governor issued several executive and emergency orders that forced the shutdown of the school year under the guise of “social distancing” requirements and other mitigation measures in response to the Coronavirus and in the name of preserving the public health of the population in the state.

To facilitate these directives, the New Hampshire Department of Education (DOE) deliberately failed to follow administrative rulemaking requirements in adopting an “emergency” amendment to its own rule that limited remote instruction in public schools to five days per school year. This illegal rule change paved the way for the Governor to direct all schools to implement remote instruction for the remainder of the 2019-2020 school year.

These actions by the Governor and DOE — which a New Hampshire superior court expressly condoned — challenged the very fabric of New Hampshire’s constitutional republic.

Part 2, Article 83 of the New Hampshire Constitution states, “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 affections, and generous sentiments, among the people.”

Based on this language, as noted above, the New Hampshire Supreme Court held “a constitutionally adequate public education is a fundamental right.”

Chapter 189 of the New Hampshire revised statutes governs school boards, superintendents, and teachers and the requirements that apply to them.  RSA 189:1 and 189:24 dictate the general standards for education in New Hampshire.

RSA 189:1 states “[t]he school board of every district shall provide standard schools for at least 180 days in each year, or the equivalent number of hours as required in the rules of the department of education, at such places in the district as will best serve the interests of education and give to all the pupils within the district as nearly equal advantages as are practicable.”

RSA 189:24 states “[a] standard school is one approved by the state board of education, and maintained for at least 180 days in each year, or the equivalent number of hours as required in the rules of the department of education, in a suitable and sanitary building, equipped with approved furniture, books, maps and other necessary appliances, taught by teachers, directed and supervised by a principal and a superintendent, each of whom shall hold valid educational credentials issued by the state board of education, with suitable provision for the care of the health and physical welfare of all pupils. A standard school shall provide instruction in all subjects prescribed by statute or by the state board of education for the grade level of pupils in attendance.”

DOE promulgated more specific rules to effectuate these general requirements.  For example, ED 306.18 governs the requirements concerning instructional time a school district must maintain for kindergarten, elementary, middle, and high school.

ED 306.18(a)(1) states “[t]he school district shall maintain in each elementary school, a school year of at least 945 hours of instructional time and in each kindergarten at least 450 hours of instructional time.”  The next section, ED 306.18(a)(2), states “[t]he school district shall maintain in each middle and high school, a school year of at least 990 hours of instructional time.”

DOE’s Five-Day Limit on Remote Learning Before COVID-19

Remote learning was permitted under DOE’s rules, but previously only for a limited time. This limit is contained in ED 306.18(a)(7).

The version of that rule that existed before the Coronavirus pandemic stated “[a] school district may submit a plan to the commissioner that will allow schools to conduct instruction remotely for up to 5 days per year when the school has been closed due to inclement weather or other emergency.  The plan shall include procedures for participation by all students.  Academic work shall be equivalent in effort and rigor to typical classroom work.  There shall be an assessment of all student work for the day.  At least 80 percent of students shall participate for the day to count as a school day.”

This rule was obviously necessary to accommodate inclement weather, which New Hampshire traditionally experiences a handful of times every winter.

DOE Must Follow Administrative Rulemaking Requirements

If DOE (or any administrative agency) wishes to modify any of its rules (including the rule above) or create new rules, it must follow the statutory procedure for rulemaking in RSA 541-A and ED 214.  Chapter 541-A governs all agency rulemaking procedures, hearings, and appeals.  ED 214 more specifically governs DOE’s public comment hearings for rulemaking.

RSA 541-A:3 states, “[e]xcept for interim or emergency rules, an agency shall adopt a rule” by a seven-step process:

  1. Filing a notice of the proposed rule under RSA 541-A:6, including a fiscal impact statement and a statement that the proposed rule does not violate the New Hampshire constitution, part I, article 28-a;
    II. Providing notice to occupational licensees or those who have made timely requests for notice as required by RSA 541-A:6, III;
    III. Filing the text of a proposed rule under RSA 541-A:10;
    IV. Holding a public hearing and receiving comments under RSA 541-A:11;
    V. Filing a final proposal under RSA 541-A:12;
    VI. Responding to the committee when required under RSA 541-A:13; and
    VII. Adopting and filing a final rule under RSA 541-A:14.

The procedure above references Part I, Article 28-a of the New Hampshire Constitution. That provision says “[t]he state shall not mandate or assign any new, expanded or modified programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.”

The rest of RSA 541-A then provides further requirements for the rulemaking process, including, but not limited to, the specific requirements for how a rule should be proposed (RSA 541-A:3-a), the requirements for a fiscal impact statement (RSA 541-A:5), 20 days’ notice of the intent to hold a public hearing and receive comments on the proposed rule (RSA 541-A:6), the procedures for a public hearing (RSA 541-A:11), the filing process and requirements for the final proposed rule (RSA-A:12), and the rule’s final adoption (RSA-A:14).

Then, as noted above, DOE’s rules (in ED 214.01-06) provide more specific procedures for the public hearings it is required to hold during the rulemaking process.

DOE May Adopt an “Emergency Rule” in Certain Circumstances

Under RSA 541-A:18, DOE is permitted to “adopt an emergency rule if it finds . . . that an imminent peril to the public health or safety requires adoption of a rule with less notice than is required under RSA 541-A:6.”  Some, but not all, of the requirements for rulemaking are eliminated when adopting an emergency rule: under the same statute above, “[t]he rule may be adopted without having been filed in proposed or final proposed form and may be adopted after whatever notice and hearing the agency finds to be practicable under the circumstances.”

That statute states, however, that “[t]he agency shall make reasonable efforts to ensure that emergency rules are made known to persons who may be affected by them.” Thus, notice (just not 20 days’ notice) and a public hearing are still required.

Moreover, RSA 541-A:18 does not eliminate the requirement of a fiscal impact statement or a statement that the proposed rule does not violate Part I, Article 28-a of the New Hampshire Constitution.

Even with the somewhat relaxed rulemaking requirements above, an emergency rule that is adopted still must include:

(a) The name and address of the agency.
(b) The statutory authority for the rule.
(c) Whether the intended action is an adoption, amendment, or repeal.
(d) The rule number and title.
(e) A signed and dated statement by the adopting authority explaining the nature of the basis for the emergency rule, including an explanation of the effect upon the state if the emergency rule were not adopted.
(f) A listing of people, enterprises, and government agencies affected by the rule.
(g) The name, address, and telephone number of an individual in the agency able to answer questions on the emergency rule.

RSA 541-A:18, IV states further: “[e]mergency rules adopted under this section shall not be adopted solely to avoid the time requirements of this chapter.  The committee may petition the adopting agency to repeal the rule if it determines that the statement of emergency required by RSA 541-A:18, III(e) is inadequate and does not demonstrate that the rule is necessary to prevent an imminent peril to the public health or safety.”

Governor Sununu’s and DOE’s Emergency Changes to Public Education

As we all know now, Governor Sununu issued a series of executive orders and emergency orders in March, April, and May 2020 to address the outbreak of COVID-19.

On March 13, 2020, Governor Sununu issued Executive Order 2020-04, which declared a state of emergency for the entire state of New Hampshire.  Under an executive order, the Governor may then issue various emergency orders addressing more specific topics.

Two days later, on March 15, 2020, Governor Sununu issued Emergency Order #1. That Order stated “[a]ll public K-12 school districts within the state of New Hampshire shall transition to temporary remote instruction and support for a three week period beginning Monday, March 16th, 2020 and ending Friday, April 3rd, 2020. It directed “[e]ach school district” to “develop a temporary remote instruction and support plan pursuant to emergency rule ED 306.18(a)(7).”  It directed school districts to develop a remote instruction plan the week of March 16, 2020 and begin providing “temporary remote instruction” on March 23, 2020 until at least April 3, 2020.

DOE’s Illegal Change to its Remote Learning Rule and Its Attempt to Hide It

Emergency Order #1 cites and relies on ED 306.18(a)(7) in directing school districts to implement remote instruction for 10 days.  That 10-day period is obviously five more than the five-day-limit provided in the rule.  Notably, RSA 4:47, III provides that Governor Sununu’s emergency powers include “[t]he power to make, amend, suspend and rescind necessary orders, rules and regulations to carry out the provisions of this subdivision in the event of a disaster beyond local control.”  Governor Sununu did not, however, suspend ED 306.18(a)(7), or the requirements of RSA 189:1 or RSA 189:24 (both of which require 180 school days).

Rather, Emergency Order #1 above referenced “emergency rule ED 306.18(a)(7)” not the original version of the rule.

Here is the explanation for that: On March 12, 2020, three days before Emergency Order #1 was issued and the day before Governor Sununu’s initial declaration of a “state of emergency” in Executive Order 2020-04, DOE secretly issued an emergency amendment to ED 306.18(a)(7) that removed the five-day limit on remote instruction.

This “emergency” amendment to, or new version of, ED 306.18(a)(7) was posted and linked to on DOE’s website, as follows:

emergency amendment to, or new version of ED 306.18(a)(7)

At the time, when the link on the web page above was clicked, the following PDF document appeared:

NH DOE Emeregency Rule screengrab march 2020

This “emergency rule” did not appear in DOE’s online compendium of administrative rules and regulations.  It also did not resemble, in the slightest, a “final rule.”  Rather, it obviously looked like a draft or “proposed rule” (complete with strikethrough and italicized and bolded insertions) that should have been scheduled for a public hearing.

In adopting this emergency amendment to ED 306.18(a)(7), it appears DOE did not follow any of the procedures for rulemaking in RSA 541-A:3, or even the somewhat relaxed rulemaking requirements for emergency rules under RSA 541-A:18.  Specifically, it failed to (1) provide notice of its intent to propose this emergency rule, (2) hold a hearing or receive comments on it, (3) file a fiscal impact statement, and (4) include a statement that the proposed rule does not violate Part I, Article 28-a of the New Hampshire Constitution.

DOE’s own press releases posted on its website leading up to the rule’s supposed March 12 adoption did not mention the proposed rule.  Its Agenda and Meeting Materials for its hearings on January 9, February 13, March 12 (the day the emergency rule was adopted), or April 9, 2020, did not mention the proposed rule.  The Minutes for the January 9 and February 13 meetings also did not mention it. (Curiously, at the time, there were no Minutes posted on DOE’s website for the March 12 or April 9 meetings.)  Further, the emergency rule above failed to comply with all but two of the requirements in RSA 541-A:18, III: it contained only a reference that it was an amendment, and the rule number and title, but none of the other requirements, including — most important — the statement of emergency in RSA 541-A:18, III(e), and referenced and emphasized in RSA 541-A:18, IV.

Even more alarming: DOE appears to have first published the web page above containing information about remote instruction, including the link to the “emergency” amendment to ED 306.18(a)(7), on March 18, 2020:

NH DOE Emeregency Rule screengrab link to the emergency amendment to ED 306.18(a)(7) on March 18 2020

The date of March 18, 2020, above, to the left of the Google result, was the date of publication of the web page.

That date is significant: this means that given DOE failed to follow rulemaking procedures in “adopting” the “emergency” amendment to ED 306.18(a)(7), including providing notice to the public and addressing it at a public hearing, the first time DOE communicated to the public that it adopted this “emergency” amendment was six days after the date it claims it adopted it (March 12).

If this illegal rule change wasn’t bad enough, it gets even weirder.  In the second part of this article, I will explain how DOE attempted to justify this illegal rule change, the fact that Governor Sununu’s office knew about it, and how this change has impacted children in New Hampshire.


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