2015-0032, Appeal of Farmington School District

brief), John H. Henn, of Boston, Massachusetts, on the brie f, and Foley Hoag Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the

as amicus curiae. (Jon Meyer on the brief), for American Civil Liberties Union of New Hampshire, Bissonnette on the brief), and Backus, Meyer & Branch, LLP, of Manchester American Civil Liberties Union of New Hampshire, of Concord (Gilles R.

Phillips on the brief and orally), for Farmington School District. Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Salem (Peter C.

orally, for Demetria McKaig. James F. Allmendinger, of Concord, NEA - New Hampshire, by brief and

No. 2015 - 0032 State Board of Education

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions a re available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshi re 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

provided Kesh e n with Student A’s initials, age, and grade. McKaig and Kesh e n New Hampshire Civil Liberties Union about Student A’s situation. McKaig After the meeting, McKaig spoke with Attorney Barbara Kesh e n of the

concluded without a decision about whether to contact Student A’s mother. Student A had a right to keep the pregnancy confidential. The meeting Student A’s mother about the pregnancy. McKaig disagreed, asserting t hat pregnancy. The principal expressed his view that the school should inform met with the principal and other school staff to discuss the issue of Student A’s After meeting with Student A, McKaig and the other guidance counselor

an abortion. See RSA 13 p. 2 2:33,: 34, II (2015). Hampshire’s pa rental notification and judicial bypass laws for minors seeking afraid for their safety. McKaig researched Student A ’s options and found New not want Student A’s mother to know about the pregnancy because they were but Student A refused. Student A and her boyfriend told McKaig that they did McKaig suggested that Student A tell her mother about the pregnancy,

fifteen years old at the time. was pregnant and that she wanted to terminate her pregnancy. Student A was and her boyfriend told McKaig and another guidance counselor that Student A student — who m, consistent with the record, we will refer to as “Stu dent A” — high school guidance counselor employed by the district. In November p. 2 2012, a The state board’s decision includes the following facts. McKaig was a

remedies. board for further proceedings to determine whether she is entitled to additional order that McKaig be reinstated to her former employment, an d remand to the reinstatement with back pay and benefits. We affirm in part, reverse in part, appeals the state board’s deci sion and argues that she i s entitled to McKaig, a guidance counselor at Farmington High School. McKaig cross - School Board (local board) not to renew the employment contract of Demetria State Board of Education (state board) reversing the decision of the Farmington HICKS, J. Farmington School District (district) appeals a decision of the

curiae. Associatio n, by brief, for New Hampshire School Boards Associatio n, as amicus Barrett M. Christina, staff attorney, of Concord, New Hampshire School Boards Theodore E. Comstock, executive director and g eneral c ounsel, and

the brief), for Planned Parenthood of Northern New England, as amicus curiae. LLP, of Boston, Massachusetts (Sarah S. Burg and Amanda S. Hainsworth on p. 3 3

but it did not order McKaig’s reinstatement or any other remedy. McKaig state board reversed the local board’s decision to uphold McKaig’s nonrenewal, 189:14 - b, II (2008), that the local board’s decision was “clearly erroneous.” The McK aig appealed to the state board, which found, pursuant to RSA

duties. grounds of insubordination and breach of c onfidentiality, but not neglect of duties. After the hearing, t he loc al board upheld McKaig’s nonrenewal on the insubordinate, had breached student confidentiality, or had neglected her administration official that in connection with this matter she had been receiving the statement of reasons for nonrenewal, she was advised by any and neglect of duties. The record contains no indication that, prior to McKaig reasons for her nonrenewal: insubordination, breach of student confidentiality, 2015). On May 24, 201 p. 3 3, the superintendent sent McKaig a stateme nt of three the reasons and a hearing before the local board under RSA 189:14 - a (Supp. reasons for nonrenewal. McKaig subsequently requested a written statement of nonrenewal from the superintendent; the notice did not advise her of the Some f our months late r, on April 9, 2013, McKaig received a notice of

the superior court. The next day, the superior court granted the TRO petition. petition. On December 10, Student A obtained a “judicial bypass order” from A’s mother about the pregnancy until the court held a hearing on the TRO behalf, notifying the superior court that the principal would not inform Student The district’s attorney filed a special appearance on the principal’s

and mention ed her age and grade, and that she was pregnant. not include Student A’s name. I t instead referr ed to Student A by her initials [S tudent A]”; she was not named in her individual capacity. The petition d id Student A’s mother. McKaig was named as the petitioner “ON BEHALF OF against the principal in superior court to prevent the principal from contacting Kesh e n instituted a petition for a temporary restraining order (TRO)

him from telling Student A’s mother about the pregnancy. notification and judicial bypass laws and determined that they did not prevent Keshen contacted him. He told Kesh e n that he had reviewed the parental A’s rights. The principal did not contact Keshen; however, on December 4, conversation with Kesh e n and ur g ed him to contact Keshen t o discuss Student pregnancy by December 5. That same day, McKaig told the principal about her with Student A to tell her that the school would inform her mother about her On December p. 3 3, 2012, the principal instructed the school nurse to meet

center and ano ther attorney to assist her with the judicial bypass proceedings. opinion to Student A, and Student A made an appointment with a health and the fact that she was contemplating an abortion. McKaig relayed this the judicial bypass law protected the confidentiality of Stud ent A ’s pregnancy also discussed Student A’s potential privacy rights. Kesh e n ’s opinion was that p. 4 4

reviewed the record and found that the record did not reasonably support the b, II’s clearly erroneous standard. The state board’s decision shows that it W e hold that the state board did not err in its application of RSA 189:1 p. 4 4 -

Isaac when reviewing the decisions of local school boards. state board applies the clearly erroneous standard as stated in Taylor - Boren v. not to assign “clearly erroneous” its usual and customary meaning. Thus, the that nothing in RSA 189:1 p. 4 4 - b, II’ s text indicates that the legislature intended Taylor - Boren v. Isaac, 143 N.H. 261, 264 (1998) (quotation omitte d). We note and then whether the court’s decision is consonant with applicable law.” evidence presented to the trial court reasonably supports the court’s findings, unsupported by the evidence . . . . Our inquiry is to determine whether the under the clearly erroneous standard. F indings of fact are clearly erroneous if review a trial court’s “factual findings as a mixed question of fact and law sta ndard . . . in RSA 189:14 - b, II.” However, as to decisions by trial courts, we As the district correctly notes, we have “yet to consider the clearly erroneous unless the local school board’s decision is clearly err oneous.” RSA 189:14 - b, II. uphold a decision of a local school board to nonrenew a teacher’s contract RSA 189:14 - b, II provides that “[t] he state board of education shall

board’s] decision was supported by the evidence.” We disagree. the local school board level rather than determin [ing] whether the [local reach [ing] its own factual conclusions based upon the evidence presented at state board in stead impermissibly engaged in de novo review, “unlawfully under RSA 189:1 p. 4 4 - b, II.” (Quotation omitted.) According to the district, the “failing to correctly apply the clearly erroneous standard of review required The district first argues that the state board committed an error of law by

Hopkinton Sch. Dist., 151 N.H. p. 4 478, 480 (2004). demonstrating that it is clearly unreasonable or unlawful.” Appeal of party seeking to set aside the [state] board’s order bears the burden of Id. We r eview the state board’s rulings on issues of law de novo. Id. “The the state board’s findings are supported by competent evidence in the record. found differently or to reweigh the evidence, but, rather, to determine whether the state board’s order, our task is not to determine whether we would have Hillsborough County Nursing Home, 166 N.H. 731, 733 (2014). I n reviewing preponderance of the evidence, that it is unjust or unreasonable. See Appeal of state board’s order except for errors of law, unless we are satisfied, by a clear RSA 21 - N:11, III (2012). Under RSA 541:13 (20 07), we will not set aside the RSA chapter 541 governs our review of the state board’s decision. See

that she was entitled to reinstatement with back pay and benefits. board’s decision except for its failure to provide a remedy. McKaig contends to this court. McKaig cross - appealed, arguing that we should affirm the state state board denied her motion. The district appealed the state board’s decision moved for reconsideration in light of th e board’s failure to specify a remedy; the p. 5 5

Student A’s confidential information. Mindful of the significant deference that was not insubordinate; and (2) that McKaig did not impermissibly disclose t he district challenges both of the state board’s conclusion s: (1) that McKaig state board to reverse the local board’s decision. See RSA p. 5 541:13. In doing so, Next, the district argues that it was unjust and unreasonable for the

review that RSA 189:14 - b, II requires the board to conduct. contrary conclusions clearly erroneous. This is precisely the nature of the which, according to it, supported its conclusions and rendered the local board’s significant evidence in the record or defects in the local board’s reasoning, applicable law”). A s to the remaining conclusions, the state boar d pointed to the court’s findings,” but also “whether the court’s decision is consonant with inquiry into not only “whether the evidence presented . . . reasonably supports Taylor - Boren, 143 N.H. at 264 (including in the clearly erroneous standard an board’s de novo review of the local board’s interpretation of district policy. Cf. question of law. The clearly erroneous standard does not prohibit the state but an interpretation of district policy, which interpretation is similar to a impermissible de novo review. The first of the three is not a factual conclusion, others. (Quotations omitted.) However, none of these conclusions evidence an policies and pra ctices applicable to her role as guidance counselor”; and reflected legitimate safety concerns”; “McKaig acted consistently with the policy that required [McKaig] to appeal to the superintendent”; “the record impermissible factual conclusions, including that: “[t]here was nothing in the T he district also points to several of the state board’s allegedly

erroneous standard in Taylor - Boren, amounts to de novo review. board’s conclusion, which essentially mirrors our explanation of the clearly confidentiality against M cKaig.’” W e fail to see how that statement in the state record as a whole does not support a finding of insubordination or breach of decision, wherein it states that ‘[u]nder these particular circumstances, the review is plainly evident in the conclusion section of [the state board’s] decision was supported by the evidence.” The district argues that “de novo factual conclusions . . . rather than determine whether the [local board’s] T he district insists that the state board “unlawfully reached its own

district policy. the local board’s conclusion that McKaig’s actions were in consistent with account of what McKaig did to assist Student A, but found clearly erroneous f actual determination. Rather, the state board accepted the local board’s from disclosing Student A’s pregnancy. This conclusion was not a de novo that McKaig report to the superintendent before acting to prevent the principal that the plain language of those policies did not require, among other things, board reviewed the di strict ’s policies cited by the local board and determined student confidentiality. Concerning insubordination, for example, the state local board’s conclusion s that McKaig had been insubordinate or breached p. 6 6

counselor.” Thus, the state board apparently recognized that McKaig had acted consistently with policies and practices applicable to her role as guidance the principal, which she did. Moreover, the s tate b oard observed that “McKaig insubordination, McKaig was required only to discuss her d isagreement with Policy 4244’s text supports the state board’s conclusion that, to avoid disagreements with the building administrator, that is, the principal. Thus state board’s conclusion, the policy recommends that employees discuss policy employee may take to “challenge [a] directive.” Moreover, consistent with the resolution, it refers to i t as the “best,” not the only, course of action that an of com mand.” (Quotation omitted.) Although the policy mentions dispute does not require district employees to appeal their disagreements “up the chain C ontrary to the district’s contention, the plain language of Policy 4244

required [McKaig] to appeal to the superintendent.’” “unjust and unreasonable in deciding that there ‘was nothing in the policy that violation of Policy 4244” was not clearly erroneous, and the state board was district argues, the local board’s conclusion that “McKaig was insubordinate in superintendent, rath er than to file “a lawsuit in [s]uperior [c]ourt.” Thus, the with the principal “above the level of [her] supervisor,” that is, with the dispute resolution required McKaig to “attempt to resolve” her disagreement him to contact” Kesh e n. The district argues that Policy 4244’s reference to informed as to her actions and research on behalf of Student A[,] and urging concluded that McKaig complie d with Policy 4244 by “keeping the principal was a disagreement with his decision.” (Quotation omitted.) The state board McKaig speak “with the building administrator[, that is, the principal,] if there Policy 4244 did not require going “up the chain of command,” but only that than up the chain of command.” However, the state board explained that the principal’s ro le as decision maker and go[ing] to court against him, rather The local board concluded that McKaig violated this policy by “disregard[ing]

Building Administrator. or unnecessary, the employee should discuss the issue with the regulation, rule, procedure and/or directive, or thinks it is unfair dispute resolution. If an employee disagrees with a polic y, supervisor, then later question or challenge the directive through insubordination issue is to follow the directive given by the The best [course] of action for an employee to take to avoid an

Policy 4244 states in pa rt: because she violated two school district policies: Policies 4244 and 411 p. 6 6. clearly erroneous. According to the local board, McKaig was insubordinate to rule that the local board’s decision that McKaig was insubordinate was W e hold that it was neither unjust nor unreasonable for the state board

challenges. we owe the state board under RSA 541:13, w e reject both of the district’s p. 7 7

into Pol icy 4116 by reference. The state board explained that the exception Educational Rights and Privacy Act (FERPA), which, we note, is incorporated McKaig’s disclosure was justified under an exception to the Federal subsequent disclosure” in the TRO petition. The state board found that and identifying information” to Kesh e n and by allowing “that information’s another provision in Policy 4116 by providing Student A’s “confidential medical breached student confidentiality. According to the local board, McKaig violated state board to reject as clearly err oneous the local board’s finding that McKaig Next, the district argues that it was unjust and unreasonable for the

Policies 4244 and 4116 was clearly erroneous. directive of the principal or that the local board’s ruling that McKaig violated unreasonable for the state board to conclude that McK aig did not disobey a McKaig not to act on Student A’s behalf, it was neither unjust nor Student A about her pregnancy. Because the principal never instructed principal’s next action was to direct the school nurse to have a discussion with pregnancy, the principal did not tell McK aig to stop assisting Student A. The not give McKaig a directive. After McKaig told the principal about Student A’s T he record supports the state board’s conclusion that the principal did

unreas onable. state board’s conclusion that McKaig violated no directive was unjust and principal’s decision was a directive, which McKaig disobeyed, and, thus, the district argues that the local board committed no clear error by finding that the principal’s decision and that McKaig had already consulted wi th” Kesh e n. The apparent that both she and the other guidance counselor disagreed with the McKaig “to cease her efforts on behalf of Student A, even when it became local board’s finding that there wa s a directive because the principal never told insubordinate. The state board determined that the record did not support the principal, McKaig violated Policies 4244 and 4116 and was therefore McKaig disobeyed this directive by “cho[osing] to become a litigant against” the Student A’s behalf. (Quotation omitted.) According to the local board, b ecause “directive” even though “it was not a direct order” to McKaig not to act on principal’s decision to inform Student A’s mother about her pregnancy was a . . . and/or the directions of the Principal.” The local board con cluded that the that “[a]ll staff members will follow policies as outlined by the School District “challeng[ing] [a] directive.” Policy 4116, in turn, provides in pertinent part her pregnancy. Policy 4244 refers to dispute resolution as a means of and abide by the decision of” the principal to inform Student A’s mother about conclusion that McKaig violated Policies 4244 and 4116 by failing to “follow The state board also rejected as clearly erroneous the local board’s

erroneous. state board to rule that the local board’s application of Policy 4244 was clearly Accordingly, we conclude that it was neither unjust nor unreasonable for the profe ssional obligations apart from her responsibilities as an employee. p. 8 8

incorporates FERPA, it was neither unjust nor unreasonable for the state board local board failed to consider FERPA or its exce ptions. Because Policy 4116 The record shows that in ruling that McKaig violated Policy 4116, the

employees” must manage confidential student information. which incorporates FERPA guidelines as the standard by which “[a]ll [district] board’s decision. We instead focus on the board’s interpretation of Policy 4116, “educational agenc[ies] or institution[s]” is not controlling in our review of the safety exception that the board considered. Thus, FERPA’s application to by reference the rules and exceptions of FERPA, which inclu de the health and student confidentiality rules and exceptions. Instead, it opted to incorporate FERPA. When drafting Policy 4116, the district could have crafted its own personal information pertaining to pupils in confidence” in accordance with Policy 4116 applies to “[a]ll employees.” It instructs employees to “keep rather than Policy 4116, when analyzing McKaig’s disclosure. Unlike FERPA, a rgument incorrectly assumes that the board was considering only FERPA, agenc[ies] or institution[s],” not district employees, such as McKaig. This FERPA’s health and safety exception because FERPA applies to “educational we reject the district’s argument that the state board erred in relying on determine the scope of Policy 4116’ s confidentiality provision. For this reason, shows that, to the extent that it considered FERPA ’s provisions, it did so to not interpreting or applying federal law. Rather, the state board’s decision We note that, in reversing t he local board’s decision, the state board was

record support[ed] a conclusion that they were.” at least in accordance with the FERPA exceptions,” and determined that “the board failed to address those concerns or “whether . . . McKaig’s actions were state board noted Student A’s safety concerns, ackno wledged that the local health or safety of the student or other persons.” I d. (quotation omitted). The situations “if the knowledge of such information is necessary to protect the permits the disclosure of c onfidential student information in emergency year, and pregnancy. The state board disagreed, and noted that FERPA violated Policy 4116 by disclosing to Keshen Student A’s initials, age, academic Buckley Amendment,” that is, FERPA. The local board found that McKaig keep personal information pertaining to pupils in confidence as required by the Policy 4116 provides in relevant part that “[a]ll employees are expected to

accordingly. confidentiality policy. Thus, we confine our discussion about confidentiality Kesh e n’s inclusion of that disclosure in the TRO petition violated the Policy 4116 alone supports its conclusion that neither McKaig’s disclosure nor confidentiality was clearly erroneous. However, the state board’s reading of two additional reasons for its decisi on that the local board’s ruling on situations.” See 20 U.S.C. § 1232g(b)(1)(I) (2012). The state board provided “permits release of confidential information under certain ‘emergency’ p. 9 9

based, in part, upon her filing of the TRO petition. then, five months later, the district decided not to rene w McKaig’s employment against it, which the trial court did and which the district did not appeal; and concerning, that: the district asked the trial court to grant the requested TRO Student A, whose rights were at issue. Mo reover, we find it ironic, as well as litigation did the district challenge McKaig’s standing to bring suit on behalf of rights by the New Hampshire legislature. At no point during the superior court brought the TRO petition on behalf of a minor, who was granted significant supervisor” because she “disagree[d] with his decision” about Student A. She that, contrary to what the dissent maintains, McKaig did not “sue her implications for the management of all collective organizations.” We also note cannot accept the dissent’s predictions about our decision’s “frighten ing administrative officials.”). Additionally, given the limited issues before us, we (2012) (“[W]e are reluctant to substitute our judgment for the expertise of administrative expertise. See Appeal of Town of S eabrook, 163 N.H. 635, 646 judgment for the state board’s reasonable interpretations based upon its the dissent may interpret the policies differently, we decline to substitute our interpretations of the polic ies were neither unjust nor unreasonable. Although context, we conclude that, for the reasons stated above, the state board’s School District and their application to a unique set of facts. In this narrow generis. Our analysis is confined to the particular policies of the Farmington The dissent and the majority agree on one thing — this case is sui

well as its ultimate conclusion that McKaig violated Policy 4116. find clearly erroneous the local board’s failure to consider that testimony as boyfriend. Thus, it was neither unjust nor unr easonable for the state board to A’s mother about the pregnancy and thereby endangering Student A and her Student A for the purpose of preventing the principal from informing Student The stateme nts showed that McKaig disclosed limited information about exception, as incorporated into Policy 4116, permitted McKaig’s disclosure. statements was necessary to determine whether the health and safety confidentiality of student information.” However, consideration of those Superintendent’s recommendation,” including the failure “to preserve the substantial way to the . . . issues supporting the acceptance of the explaining that “[t] he statements attributed to [Student A] did not relate in any conclude that these statements were irrelevant to the confidentiality issue, A] claim she said at various points in time.” The local board appeare d to that it did not base its decision on “what the witnesses who dealt with [Student board did not address this testimony specifically, but stated more generally counselor testified repeatedly about Student A’s safety concerns. The lo cal found out” about her pregnancy. Both McKaig and the other guidance Student A and “her boyfriend were afraid for their safety if [Student A’s] mother Further, the record supports the state board’s determination that

Policy 4116 was clearly erroneous. to conclude that the local board’s failure to address FERPA in its analysis of p. 10 10

of the local board’s decision, and order that McKaig be reinstated to her former meaningless. See RSA 189:14 - b. W e therefore affirm the state board’s reversal not to renew a teacher or, in the instant case, a guidance counselor, would be reinstatement, the state board’s authority to reverse a local board’s decision We acknowledge, as did the district, that, without the ability to order

and benefits, not attorney’s fees. and brackets omitted). We note, however, that here McKaig requests back pay award of counsel fees on the basis of bad faith is appropriate.” Id. (quotation right, which should have been freely enjoyed without such i ntervention, an is forced to seek judicial assistance to secure a clearly defined and established Adams, 117 N.H. 687, 377 A.2d 617 (1977), [stating that] w here an individual N.H. at 631. In doing so, we relied up on the “test we set out in Harkeem v. attorney’s fees to a teacher who prevailed in a nonrenewal matter. Littky, 129 In Littky v. Winchester School District, 129 N.H. 626 (1987), we awarded

not explicit ly connect the reinstatement remedy to RSA 189:14 - b. Id. We ordered reinstatement on the basis of that statutory violation, but we did prohibited employment discrimination against the disabled. Id. at 539, 543. petitioner’s nonrenewal on account of his asthma violated a statute that However, Dunlap did not so hold. Rather, in Dunlap, we held that the argument that RSA 189:14 - b “includes the power to reinstate a teacher.” Dunlap, 134 N.H. at 534 - 35, 543. McKaig cites Dunlap to support her renewed because of the teacher’s many absences due to chronic asthma. the reinstatement of a teacher whose contract the school district had not in nonrenewal matters. In Petition of Dunlap, 134 N.H. 533 (1991), we ordered reversal. In two cases, we have discussed remedies for teachers who prevail ed However, the statute does not explicitly provide for a remedy in the event of a the decisions of local boards in nonrenewal matters. See RSA 189:14 - b. RSA 189:14 - b grants the state board the authority to review and reverse

pay and benefits. uphold the board’s decision. However, it contests Mc K aig’s entitlement to back not deny that reinstatement would be a prope r remedy in the event that we she is entitled to reinstatement with back pay and benefits. The district does McKaig’s employment, it did not order a specific remedy. McKaig argues that Although the state board reversed the local board’s decision not to renew

points raised by the dissent, we reject its substantive criticisms of our analysis. motivations of the dissent; rather, after giving due consideration to the legal our motivations. In contrast, we do not choose to speculate upon the are disappointed by the tone of the dissent and its incorrect assumptions about of judicial review, according proper deference to the state board’s decision. We application of legislative enactmen ts, and employs well - established principles nothing remarkable about our analysis; rather, it is based upon a reasoned Apart from the unique circumstances giving rise to this case, there is p. 11 11

is 4 years or less”). constitutes class A misdemeanor “where the age difference between the act or and the other person (sexual penetration with a person, not the actor’s spouse, age 13 or older and under 16 be tween the actor and the other person is 4 years or more”), with RSA 632 - A:4, I(c) (Supp. 2015) actor’s spouse, age 13 or older and under 16 constitutes class B felony “where the age difference than Student A. Compare RSA 632 - A:3, II (Supp. 2015) (sexual penetration with a person, not the a felony. From this discussion, I infer that the boyfriend was slightly less than four years older indicated that the boyfriend’s age was a few months short of that necessary to render his conduct whether the school district had an obligation to report the conduct to the police. The discussion inability to consent to sexual activity, her boyfriend likely had engaged in crim inal conduct, and At the hearing, there was a discussion about the fact that, because of Student A’s age and legal 1

A was pregnant and that she wanted to have an abortion. According to nearly four years o lder. In that meeting, the counselors learned that Student 1 School met with Student A, a fifteen - year - old girl, and her boyfriend, who was 2012, Demetria McKaig and the other guidance counselor at Farmington High hearing it held pursuant to RSA 189:14 - a (Supp. 2015). On November 26, following facts that were presented to the local board at the two - day evidentiary Given the majority’s truncated recitation of the facts, I include the

renew McKaig’s contract. For these reasons, I respectfully dissent. (local board) decision, it would have bee n required to uphold the decision not to the state board given the required deference to the Farmington School Board’s McKaig’s breach of Student A’s right to confidential ity per district policy. Had majority allows the sta te board to impermissibly act as fact finder regarding Neither of these premises, however, can withstand scrutiny. Additionally, the decision, but to become an adversary in a court proceeding against him. she had a right, not simply to advise the student of her disagreement with his that, because McKaig disagreed with the principal’s decision to tell the parents, some manner at least arguably unlawful or wrong. Second, it also accepts principal’s decision to disclose Student A’s pregnancy to her parents was in the holding is based upon the implicit (albeit unstated) determination that the that McKaig was not insubordinate, is based upon two flawed premises. First, Hampshire Board of Education (state board) could have reasonably concluded LYNN, J., dissenting. The majority’s holding, that the State of New

dissented. DALIANIS, C.J., and CON BOY and BASSETT, JJ., concurred; LYNN, J.,

board in the first instance. is entitled to additional remedies, which issue should be addressed by the state employment. W e also remand to the state board the issue of whether McKaig p. 12 12

notification by the principal. the possibility tha t Student A’s biological father or other legal guardian may have been part of any notified, but it does not matter for purposes of this case. I use “parents” in order to account for It is unclear from the record whether Student A had more than one parent that was to be 2

was only concerned about informing the parents of the pregnancy. determined that the statute concerned a minor having an abortion, and that he Keshen of the ACLU. The principal testified that he cons idered the statute, but the statute to the principal and tried to have him contact Attorney Barbara such notification requirement under certain circumstances. McKaig forwarded abortion and establishing the p rocedure for a so - called “judicial bypass” of (2015), a statute requiring parental notification prior to a minor having an Union of New Hampshire (ACLU), and received a copy of RSA 132:33 and :34 During this time, McKaig had contacted the American Civil Liberties

The nurse met with Student A, who “adamantly” denied being pregn ant. Wednesday, the school would invite the parent in for a meeting to inform her. pregnant and to inform her that if she did not tell her mother by that parents. He asked the nurse to confir m with the student that she was, in fact, meet with Student A, to see if she could convince the student to tell her assistant superintendent and the assistant principal, asked the school nurse to On Mo nday, December 3, the principal, after consulting with both the

principal decided to wait until after the weekend to make a decision. in the meeting who voiced opposition to telling the parents. Ultimately, the pregnant. She also agreed that the two guidance counselors were the only two because he stated that he would want to know if his teenage daughter were guidance counselor testified that she felt the principal was “personalizing,” Both guidance counselors opposed informing the parents. The other

the pregnancy. on a prior occasion even though the student did not want the parent to know of that she felt the parents should be notified, and indicated that she had done so know what was going on, both for her and the baby.” The school nurse stated strongly that, for the health and safety of that child, the parents need[ed] to had handled similar situations in the past. The principal stated that he “felt parents should be informed, and the principal inquired about how the school 2 she did not want to tell her mother. A conversation ensued about whether the principal, McKaig informed those present of Student A’s disclosure and th at Later that week, at a meeting with select school staff including the

to know.” Thereafter, McKaig began looking for services to help the student. family found out, and that they were adama nt they did not want [her] mother McKaig, the two “were very concerned [for] the boyfriend’s safety if [Student A’s] p. 13 13

Loughman informed the court that the principal agreed, pending a hearing, not Loughman, who filed a special appearance on behalf of the principal. administration. The superintendent, in turn, contacted Attorney Barbara Upon receipt of the complaint, the principal contacted the school district

the principal. captioned “DEMETRIA MCKAIG (ON BEHALF O F [Student A’s initials])” versu s bypass provisions of the parental notification law. The complaint was that her entire approach was based upon her understanding of the judicial testified that she did not review any district policies relating to this issue and violation of the parental notification law if he informed the parents. Keshen the complaint for granting such relief was that the principal would be in parents of [Student A] that she is pregnant.” The only legal basis asserted in temporary and immediate order restraining [the principal] from informing the That afternoon, Keshen filed a complaint in superior court seeking “a

stated “okay[,] [t]hank you[]” and “called [Keshen] and sai d go ahead.” which the student responded, “I don’t want my mom to know.” McKaig then principal from telling her mother, McKaig is “going to have to go to court,” to the principal’s intentions. McKaig told the student that, in order to stop the McKaig met with Student A during her lunch break and informed her of

initials, age, and grade. to reveal her pregnancy to her family. McKaig gave Keshen the student’s Keshen also testified that she di d not know Student A’s reasons for not wanting with Student A and never received the student’s authorization to file a lawsuit. wanted to speak with Student A first. Keshen testified that she did not speak to use McKaig’ s name on the complaint. McKaig assented but stated that she she “felt that [she] was representing (Student A)” and not McKaig, but needed potentially filing an emergency lawsuit in superior court. Keshen stated that At around this same time, McKaig had a conversation with Keshen about

parents. assistant superintendent agreed with the principal’s decision to tell the pregnancy. There was also testimony that both the superintendent and the it did not change his mind about informing Student A’s parents about the reviewed the parental notification statut e. He indicated that he had, and that On December 4, Keshen called the principal and asked him if he had

by[-]case basis at the local school level.” whether to inform the student’s parent(s) is to be determined on a case discloses a pregnancy to a nurse or other scho ol staff member, the issue of Hampshire Department of Education’s website, which stated: “If a student federal information on this issue. For instance, McKaig cited the New forwarded t he principal additional research she had gathered about state and McKaig, noting the lack of school district policy directly on point, also p. 14 14

and reversed the local board’s decision. This appeal followed. briefing and oral argument, adopted the recommendation of the hearing officer board reverse the decisio n of the local board. The state board, after additional reviewing the record and the parties’ arguments, recommended that the state board’s decision to the state board. A state board hearing officer, after Pursuant to RSA 189: p. 14 14 - b (Supp. 2015), McKaig appealed the local

duties. confidentiality; it did not accept the recommendation based upon negle ct of the bases that McKaig was insubordinate and breached Student A’s recommendation not to renew McKaig’s contract, by a vote of 3 - 2. It did so on Following a hearing, the local board accepted the superintendent’s

responsible.” “special education team meetings concerning students for whom you are policies and practice”; and (3) neglect of duties, in part for failing to attend practice, and otherwise exercised poor judgment in disregard for District personal student information private in violation of District policies and your handling of the student matter referenced above, you failed to keep your supervisory principal”; (2) breach of student confidentiality, stating “[i]n address a student matter, you chose to bring suit in Superi or Court aga inst follow the chain of supervisory authority within the school district in order to reasons for her nonrenewal: (1) insubordination, stating that “[r]ather than local board. In May, the superintend ent sent McKaig a letter listing t hree requested the specific reasons for the nonrenewal and a hearing before the following school year. Pursuant to her rights under RSA 189: p. 14 14 - a, McKaig inform ing her that he would not be renominating her to her position for the In April 2013, McKaig received a letter from the superintendent

confidentiality requirements of RSA 132:34.” order[ed] him to remind the members of the administrative team of the “enj oin[ing] the defendant from making the disclosure to the parents, and ... the District feels it has a responsibility to do so.” The court issued an order please enter an order telling us that we can’t tell the parent because, otherwise, address with the parent s. Loughman stated, “I basically said to the Court, restraining order because there was no longer a health issue for the distri ct to notification waiver, the school district did not challenge the request for a Loughman testified that, upon being informed of the grant of the parental parents and had granted a waiver of no tification under RSA 132:34. hearing on Student A’s petition to have an abortion without notifying her 11. There, the parties learned that, the day before, the court had held a The court held a hearing regarding the restraining order on December

scheduled for December 11. to notify the p arents of Student A about her pregnancy. A hearing was then p. 15 15

administrative gloss that would be entitled to defere nce. See Petition of Kalar, board in a particular manner, such that they have become imbued with an involve polic i es or regulations that have been repeatedly construed by the state the operation or managem ent of the school system. Nor do the issues here informing her parents requires any specialized knowledge or expertise about insubordination nor the matter of whether Student A had a legitimate fear of of the policies at issue here. Yet neither the matter of employee defer to the state board’s “administrative expertise” regarding the int erpretation board’s decision. The majority blesses the state board’s action, purporting to Gribble, 165 N.H. at 24 (quotation omitted), the state board reversed the local witnesses’] inflection, sincerity, demeanor, cando r, [and] body language,” of factors impossible to capture fully in the record — among them, [the erroneous. Nonetheless, without the benefit of the ability to appraise the “host board properly hav e found that the local board’s decision was clearly Taylor - Boren, 143 N.H. at 264. Only upon one of these bases could the state before the local board was in sufficient to support the decision it reached. See assessing whether the local board made an error of law or whether the evidence issues, its review of the local board’s decision should have been confined to Because the state board had no basis for resolving disputed factual

omitted)). basis for assessing a venire member’s fitness for jury service.” (quotation in - the - moment voir dire affords the trial court a more intimate and immediate (2013) (“In contrast to the cold transcript received by the appellate court, the Giles, 140 N.H. 714, 718 - 19 (1996); see also State v. Gribble, 165 N.H. 1, 24 of voice or demeanor, two useful tools in the assessment of credibility.” State v. evidence is “because a trial transcript provides no indication of a witness’s tone of the fundamental reasons we defer to the tribunal that saw and heard the both sides relied upon a transcript of the hearing before the local board. One the state board itself, the parties presented oral argument and briefing, but hearing in this matter. Before the state board hearing officer, as well as before It was the local board, not the state board, which held an evidentiary

board did not act as fact finder in this case. acknowledges that rulings of law are reviewed de novo. However, the state the “findings” it is referencing, but it must mean factual findings, as it supported by competent evidence in the reco rd. The majority never explains on to say that it must determine whether the state board’s findings are (1998) (quotation omitted). The majority recites this standard, but then goes “unsupporte d by the evidence.” Taylor - Boren v. Isaac, 143 N.H. 261, 264 means that the local board’s factual findings must be upheld unless uphold the decision of the local board unless it is clearly erroneous. This The majority correctly notes that, per RSA 189:14 - b, the state board must Before turning to the merits, I address the applic able standard of review.

school district did not challenge McKaig’ s ability to act on Student A’s behalf. But lack of behalf, makes the lawsuit she brought all the more unprecedented. The majority notes that the Student A’s parent or guardian, and therefore appears to have had no legal standing to act in her incapacity, could not bring suit on his or her own behalf. Of course, the fac t that McKaig was not named party in a lawsuit brought on behalf of his or her child or ward who, because of age or named p etitioner in the lawsuit, in the same manner that a parent or guardian would be the little more than an attempt to elevate semantics over substance. The fact is that McKaig was the granted significant [but wholly undescribed] rights by the New Hampshire legislature.” This is decision,” insisting that instead she “brought a TRO petition on behalf of a minor, who was The majority disputes that McKaig “sued her supervisor because she disagreed with his 4 bargaining agreement (CBA), including, if allowed by the CBA, initiating an action in court. been fully justified in challenging the decision by pur suing her rights under the collective rights or status as an employee of the school district. In that circumstance, she might well have This would be an entirely different case if the principal’s decision had adversely affected McKaig’s 3

organizations, whether public or private, large or small. Because the majority 4 carries rather frightening implications for the management of all collective withou t committing insubordination is a novel legal concept — and one that that reason alone file a lawsuit against the employer to change the decision does not infringe upon some personal right or interest of the employee may for 3 employee who disagrees with her employer’s business decision - making that reversed, it was perfectly all right for McKaig to do so. The thesis that an on an issue within his authority to decide cannot sue to have the decision principal saying that an employee who disagrees with her supervisor’s decision absence of a specific provision in the policies or specific statement from the the state board and the majority seek to draw from the policies — that in the The obvious problem with these constructions is the negative implication which directive “to ce ase her efforts on behalf of Student A.” (Quotations omitted.) 41 p. 16 16 was not violated because the principal never gave McKaig a specific she speak with the building supervisor (here the principal); and that Policy decision to go “up the chain of command” with her disagreement, but only that Policy 4244 does not require an employee who disagrees with her superior’s deprives them of any real meaning. For example, the majority asserts that endeavor to surgically parse the language of these policies in a manner that erroneous. To arrive at this conc lusion, the state board and the majority insubordinate in violation of district Policies 4244 and 4116 to be clearly state board reasonably found the local board’s decision that McKaig was Turning to the merits, I first discuss the majority’s conclusion that the

for that of the local board. reality amount to nothing more than the state board substituting its judgment record before us simply does not support the state board’s “findings,” which in transcript of the hearing held before the local board. As discussed below, the read the straight - forward language of the school district’s policies a nd the local board’s decision required nothing more sophisticated than an ability to p. 16 162 N.H. 314, 321 - 22 (2011). On the contrary, the state board’s review of the p. 17 17

195 (2008). consent or waiver. See Libertarian Party of New Hampshire v. Secretary of State, 158 N.H. 194, standing deprives a court of subject matter jurisdiction, a defect that cannot be remedied by

be confidential and shall not be available to the publ ic.” Id. this section shall be sealed” and “[a]ll documents related to this petition shall 132:34, II(b) (emphasis added). It continues that “[a]ll court proceedings under court, shall be confidential and shall ens ure the anonymity of the minor.” RSA also provides that “[p]roceedings under this section shall be held in closed parent . . . would be in her best interests . . . .” RSA 132:34, II. The statute mature, “the performanc e of an abortion upon her without notification of her giving informed consent to the proposed abortion” or, if the minor is not obtaining a ruling by a judge that the minor either “is mature and capable of ab ortion without notifying a parent by filing a petition in the superior court and procedure, the so - called “judicial bypass,” that permits a minor to have an been given to a parent of the minor. See RSA 132:33. RSA 132:34 creates a abortion upon a minor until 48 hours after notice of the proposed abortion has The parental notification law generally prohibits the performance of an

the argument that notifying a parent would be a violation of RSA 132.” basis for this claim, and the local board thus was entirely correct in “reject[ing] notification law, RSA 132: 34. There is, however, not even an arguable legal such disclosure would violate the judicial bypass provision of the parental supposed “unlawfulness” of the principal’s intended disclosure is the claim that und er the circumstances.” The only ground offered by McKaig to support the afforded the student certain privacy rights that prevented parental disclosure insubordinate because “she was acting under a reasonable belief that state law the linchpin of its decision. The state board concluded that McKaig was not the principal’s decision to disclose Student A’s pregnancy t o her parents was Indeed, the state board’s ruling reveals that the claimed unlawfulness of

decision. lawsuit against the principal because she disagreed with that otherwise correct majority could hold that it was not insubordinate for McKaig to participate in a parents about the student’s pregnancy, then it is hard to imagine how the Stated differently, if the principal was properly within his rights to tell the with which McKaig di sagreed, but was in some way wrongful or unlawful. decision to tell Student A’s parents about her pregnancy was not simply one action in suing her principal was not insubordinate because the principal’s only plausible explanation for its holding is that the majority believes McKaig’s Instead, although the majority studiously avoids saying as much, th e

to its validity and does not decide the case on this ground. proposition, it is fair to conclude that the majority does not genuinely ascribe cites no law and conducts no analysis supporting such a far - reaching legal p. 18 18

abortion. Rather, if such an obligation exists, its source must be found elsewhere, such as in the imposes no obligation of confidentiality on even the physician selected by the minor to perform the minor’s claim that she is mature or that having an abortion is in her best interest), RSA 132:34 proceeding (by, for example, submitting an affidavit in support of — or in opposition to — the It is worth noting here that, unless he or she som ehow becomes a part of the judicial bypass 6 proceeding from notifying parents of their minor child’s pregnancy. learn that it also sub silen t io created a privilege that prevents third parties not involved in the required prior to performance of an abortion can be waived, will no doubt be quite surprised to established a confidential judicial proceeding by which the notice to parents that is normally The legislature that passed a statute entitled “Parental Notification Prior to Abortion,” and which 5

information, including to her parents. See generally Lewis v. United States, 6 she assumed the risk that they would make further disclosure of the wisdom of that choice. But by disclosing her pregnancy to these individuals, situation to her boyfriend and McKaig. I do not for a moment question the judicial by pass procedure. Instead, she decided to voluntarily disclose her her control to keep that information private and to anonymously invoke the pregnant or that she wished to have an abortion, she had it completely within judicial bypass procedure. If Student A did not want anyone to know she was counselor (or anyone else, for that matter) as a prerequisite t o invoking the 132:32 through :34 impose a requirement on Student A to speak with a school instituted at the time Student A made her disclosure to McKaig, nor does RSA parties to or had access to the byp ass proceeding, which had not even been judicial bypass proceeding. Neither the principal nor the school district were Student A’s disclosure to McKaig of her pregnancy was no t part of the

the principal — from disclosing the pregnancy to the parents. 5 created a privilege which prevented a person uninvolved in that procee ding — provisions regarding the judicial bypass proceeding established by RSA 132:34 methodology, the majority has somehow determined that the confidentiality case. Therefore, we are left to guess that, through some wholly unarticulated are, in which statute they are located, or how they apply to the principal in this Hampshire legislature.” However, the majority never tells us what th ese rights summarily concludes that Stude nt A was “granted significant rights by the New explicit attempt to construe RSA 132:34 as creating such a privilege, it entire underpinning of McKaig’s appeal. And although the majority makes no pri vilege. Yet the existence of such a phantom “pregnancy privilege” forms the how the text of RSA 132:34 could plausibly be construed to confer such a McKaig nor amicus ACLU offer s the slightest developed argument suggesting disclosing such information to others, including the minor’s parents. Neither (whether through voluntary disclosure by th e minor or otherwise) from completed abortion from sources outside the judicial bypass court proceeding to preclude others who become aware of her pregnancy or her intended or establish some form of privilege that bestows upon a pregnant minor the right filings related thereto. Nothing in the statute even remotely purports to only with respect to the judicial bypass proceeding itself and any documents or By its plain language, the statute imposes an obligation of confidentiality p. 19 19

disclosed to persons other than the parents. ability to access information bearing on their minor child’s welfare that the child has voluntarily than a little troubling, not to mention the due process implications of interfering with parents’ Amendment implications alone of a court having the ability to enjoin such disclosur es are more physical safety or emotional health (for example, by causing her embarrassment)? The First A’s parents, or disclosure to anyone as to whom she is afraid the disclosure will jeopardize her “promise” to keep the information “secret”)? Does the privilege prohibit only disclosure to Student friends to whom she may have disclosed her pregnancy (perhaps upon their express or implied only to McKaig, her principal, and the school distri ct, or also to Student A’s boyfriend and other provided to it by the person claiming privacy protection. If such a privilege exists, does it apply prohibit either a governmental actor or a private actor from disclosing information voluntarily circumstance, however, where the constitution itself, as opposed to a statute or r egulation, would breathtaking. Normally a constitutional right limits governmental action only. I am aware of no privacy” in the circumstances of this case, but the implications of such a privilege would be quite legal authority supporting the ACLU’s suggestion that Student A enjoyed a “constitutional right to 275 - E (2010 & Supp. 2015). See RSA 275 - E:2, I(a) (Supp. 2015). Not only is there an absence of protected, as the ACLU claims, by New Hampshire’s Whistleblowers’ Prote ction Act, RSA chapter as to support the thesis that McKaig’s actions in bringing a lawsuit against the principal are volunta rily disclosed to McKaig independently of the judicial bypass proceeding was unlawful, so believed that the principal’s disclosure to Student A’s parents of the information Student A such a right. For the same reason, there is no basis upon which McKaig could reasonably have injunction against the principal, none of the cases cited by the ACLU support the existence of constitutional right to protect her voluntary disclosure to McKaig by going to court to get an the extent that the ACLU’s argument could be construed as asserting that Student A had a confidentiality of a minor’s pregnancy status is also correct a s a matter of constitutional law.” To In its amicus brief, the ACLU argues that “[i]nterpreting RSA 132:34 as protecting the 7 medical judgment, is a matter I leave for another day. here, grants the physician discretion to make such disclosure based upon his or her sound have an abortion to her parents, over the minor’s objection, or, as with the school policies at issue would impose an absolute bar against a physician disclosing a minor’s pregnancy or intent to physician - patient privilege. See RSA 329:26 (2011); N.H. R. Ev. 503(a). Whe ther that privilege

that the principal had the authority to do exactl y what he proposed to do. otherwise, to prevent the principal from doing so. In fact, the record reflects such “policies and practices” that authorized McKaig, through legal action or pregnancy and that the stat e board did not articulate the substance of any that the principal had the discretion to inform Student A’s parents of her But of course the basis for such recognition is anything but apparent, given obli gations apart from her responsibilities as an employee.” (Emphasis added.) that “the state board apparently recognized that McKaig has professional applicable to her role as guidance counselor,” the majority confidently asserts observation that “McKaig acted consistently with policies and practices disclosing Student A’s pregnancy to her parents. Based on the state board’s claim that there exists any other authority that precluded the principal from Aside from her unavailing relian ce on RSA 132:34, McKaig makes no

accordance with school district policies and procedures. 7 Student A assumed the risk that the district would treat the information in in her capacity as a school counselor and employee of the school district, In particular, by disclosing her pregnancy and desire for an abort ion to McKaig 385 U.S. p. 20 206, 210 - 11 ( p. 19 1966); State v. Valenzuela, 130 N.H. 175, 182 - 83 (1987). 20

sexual conduct independently of the judicial bypass proceeding. result in circumstances, such as exist here, where a mandatory reporter learns of the minor’s active. Needless to say, there is no basis whatsoever for interpreting RSA 13 2:34 to compel such a a child under 16 does not desire his or her parents to know that he or she has been sexually effectively p revent DHHS from performing its statutorily imposed duties in circumstances in which aware of the investigation, the privilege claim which McKaig and the ACLU advocate would it is wholly unrealistic to expect that DHHS could do so without Student A’s parents becoming an obligation to conduct a child protect ive investigation, see RSA 169 - C:34, II ( p. 20 2014), and because had an obligation to report this fact to DHHS. Given that, upon receipt of such report, DHHS has statutory rape, in violation of RSA 632 - A:4, I(c), and the principal and school district presumably under age 16 and thus incapable of consenting to sexual intercourse, she was the victim of under 18 who has been “rape[d].” RSA 169 - C:3, II(a), XXVII - a (2014). Because Student A was “[a]bused child” includes a child who has been “[s]exually abused,” which in turn includes a child “shall not constitute grounds for failure to report as required by this chapter.” Under the Act, an client, except that between attorney and client,” and provides that any such abrogated privileges privileged quality of [any] communication between .. . any professional person and his patient or department of health and human services (DHHS). RSA 169 - C:32 (2014) abrogates “[the] has reason to suspect that a child has been abused or neglected” to report such abuse to the (2014 & Supp. 2015). RSA 169 - C:29 (2014) requires school officials and “any other person who Student A’s pregnancy to her parents is at odds with the Child Protection Act, RSA chapter 169 - C The proposition that RSA 132:34 could be interpreted to bar the principal from disclosing 8

insubordinate because the principal never instructed her not to sue him if she directive of the principal.” This is tantamount to holding that McKaig was not unreasonable for the state board to conclude that McKaig did not disobey a McKaig not to act on Student A’s behalf, it was neither unjust nor given by the principal. It states that “[b]ecause the principal never instructed named party in a lawsuit against the principal, did not viola te any “directive” by reasoning that McKaig was not insubordinate because she, by becoming a the lawfulness of the principal’s decision, the majority upholds the state board principal to prevent the suspension. Nonetheless, without any discussion of there would be no question that McKaig could not file a lawsuit against the decision to suspend a student and McKaig disagreed with that determination, supervi sor and an employee. For example, had the principal made a lawful wrongful, this case is no different than any other disagreement between a Absent some showing that the principal’s decision was unlawful or

pregnancy to her parents. 8 authority that would have prevented the principal from disclosing Student A’s herein, however, McKaig was wrong — there is no law, policy, or oth er maintained that the principal’s decision “was against the law.” As discussed decision to disclose was one made “at the local school level,” but, rather, information, McKaig did not deny its app licability or that the principal’s case - by - case basis at the local school level. When confronted with this is not prohibited and that a decision to inform the parents must be made on a inform a studen t’s parents that she is pregnant. Both admitted that disclosure information on its website regarding when a school administration should testimony before the local board, the State Department of Education had As both McKaig and the other guidance counselor acknowledged in their p. 21 21

— so much so that, when Keshen filed the complaint in the superior court, she more than that. She assumed an active role as adversary against her principal let the two discuss the student’s legal options. However, McKaig did much could have simply spoken with Student A, put her in contact with Keshen, and there was no justification for the way she chose to handle the matter. McKaig McKaig’s erroneous view that the principal’s decision was “against the law,” Moreover, the local board could readily have found that, even under

was doing. short, scant support for the thesis that McKaig did not appreciate what she admitted that she knew that Keshen was going to use her name. There is, in could be consequences for” McKaig being named in th e lawsuit. Even McKaig them about it.” Keshen also testified that she informed McKaig that “there would put someone’s name on a petition, I would have a conversation with this petition becau se I didn’t know the student’s name” and that “before I make sure that . . . [she] was aware that I was going to be putting her name on Keshen testified at the local board hearing that she spoke with McKaig “to bel ow that is clearly erroneous, it is this purported “finding” of the state board. potential adversarial effect.” However, if there is anything about the decisions pleadings would take, or whether she was aware of or considered their unclear from the record whether McKaig herself was familiar with the form the of these policies. The state board determined, without elab oration, that “[i]t is become a litigant” against her principal, McKaig was insubordinate in violation ample support in the record for the local board’s finding that, by “cho[osing] to International Dictionary 1172 (unabridged ed. 2002). In that regard, there is meaning of the term, which is “defiance of authority.” Webster’s Third New insubordination, is completely consistent with the common and accepted The clear tenor of Policies 4244 and 4116, in proscribing

the building administra tor. cannot reasonably be understood to incorporate a right to file a lawsuit against seek reconsideration of a decision within the hierarchy of the school district, it policy could be read to contemplate some implied ability for an employee to that there was no additional recourse for McKaig. Furthermore, even if the final decision - making authority regarding the disclosure of the pregnancy and these circumstances is that it reflects the recognition that the principal had the case was the principal. However, the only sensible reading of th e policy in with the Building Administrator,” and that the building administrator in this disagreement to the superintendent, but that she “should discuss the issue I agree that Policy 4244 did not explicitly require McKaig to take her

that result. to have been stated aloud. Yet, the majority’s decision seems to require just plainly evident to any reasonable person that it would be irrational to expect it cannot sue her supervisor when s he disagrees with his decision should be so disagreed with the decision that he made. However, a directive that a person p. 22 22

state board’s conclusion that there were legitimate safety concerns if Student mentio ned in the policy to uphold the state board’s decision. However, the Instead, the majority relies upon the FERPA health or safety exception that Student A consented to the disclosure of her confidential information. Keshen so that she could file the lawsuit. However, McKaig does not argue simply obtained Student A’s consent to disclose her c onfidential information to been acting on behalf of Student A, one would think that McKaig would have Even putting the interpretation of the policy aside, had McKaig truly

indivi dual employees. This interpretation makes little sense. for the violation of FERPA because it does not allow for such disclosure by the need for disclosure would mean that the district adopted a policy allowing regardless of the contrary view of the educational agency or institution as to 4116 as allowing any employee individually to disclose confident ial information information and rely upon the health or safety exception. To interpret Policy the wishes of the school administration, are permitted to disclose confidential institution[s],” only those entities, not a school district employee acting against However, because FERPA applies only to “educational agenc[ies] and

irrelevant. fact that FERPA is applicable only to “educational agenc[ies] or institution[s]” is described in FERPA. 20 U.S.C. § 1232g(b) (1)(I). It therefore concludes that the required by” FERPA adopted, for all employees, the health or safety exception expected to keep personal information pertaining to pupils in confidence as (FERPA), 20 U.S.C. § 1232g (2012), when stating that “[a]ll employees are that the policy’s reference to the Federal Educational Rights and Privacy Act disagree with the majority’s interpretation of Policy 4116. The majority holds her duty of confidentiality to Student A was clearly erroneous. Initially, I sustainably determined that the local board’s decision that McKaig br eached I also cannot agree with the majority’s holding that the state board

school’s policy. decision of the local board that McKaig was insubordinate according to the proper deference to the local board, it would have been re quired to uphold the For all of the reasons discussed above, if the state board had afforded the

reasonably found to be “quite incredible.” a minor student she had never met or talked to,” testimony the local board quite understandably was skeptical that Keshen could have been “representi ng Keshen’s representation or the filing of a lawsuit on her behalf. The local board spoken to Student A in order to determine that the student consented to did so based on McKaig’s authorization and with out ever having personally p. 23 23

concerns provided no justification for her insubordinate conduct. demonstrates that the state board had no basis for upsetting the local board’s finding that such dissent as support for its conclusion that McKaig was not insubordinate, the discussion herein To the extent the state board relied upon the safety concerns discussed in this section of the 9

provided any support whatsoever for these conclusory assertions. For a healthy environment and a safe environment.” Neither guidance counselor “had safety concerns within her family,” and that the family dynamic was “not the family found out.” The other guidance counselor test ified that the student Student A and her boyfriend “were very concerned [for] the boyfriend’s safety if safety concerns without factual backup. Among these, McKaig testified that This testimony consisted mostly of vague and unarticulated allegations of guidance counselors “testified repeatedly about Student A’s safety concerns.” of Student A’s safety concerns. The majority simply reasons that both Initially, neither the majority nor the state board discuss the substance

did not involve a safety concern with informing the parents at all. conclusory statements completely devoid of foundation, and, at worst, that they regarding these “safety concerns” reveals that, at best, the testimony reflects legitimacy of these [safety] concerns.” However, exploration of the record regarding the family.” It also states that “there is no dispute as to the A’s concerns and arguably in the best position to assess the safety issues Nonetheless, the state board reasoned that “McKaig was privy to Student

discretion as fact finder, and hardly constitutes clear error. weight to the hearsay statements of Student A was undoubtedly well within its appointment herself. The local board’s determination not to attribute much executive director of the center deny this, testifying that the student made the appointment for her at the Feminist Health Center, an d both McKaig and the testified that Student A informed the administration that McKaig had made the — “adamantly” denying being pregnant. Additionally, the superintendent principal instructed the school nurse to approach Student A, the student lied appropriately supported by the record in this case. For instance, when the questionable credibility is, contrary to the state board’s conclusion, The local board’s finding that the hearsay statements of Student A are of

drawn into this sit uation.” inclined to say what she felt those she was dealing with wanted to hear when witnesses. It determined that Student A “was, in all likelihood, very much whose statements were admitted as hearsay testimony through other that it could not rely upon the statements of Student A, who did not testify, but Student A expressed a safety concern. However, the local board determined To be sure, there is testimony from both guidance counselors that

instance of it substituting its o wn factual findings for that of the local board. 9 A’s parents were notified of her pregnancy is perhaps the most obvious p. 24 24

state board placed on these matters in arriving at its decision. Nonetheless, matters in addition to the “safety” rationale, it is not clear what significance the clearly erroneous.” Although it is true that the sta te board discussed two reasons for its decision that the local board’s ruling on confidentiality was The majority observes that “[t]he state board provided two additional

matter further. number, and suggesting that she ca ll Keshen if she wanted to pursue the what she had been told by Keshen, giving the student Keshen’s telephone concerns to the attorney generically and then simply informing Student A of for disclosure of such information to Keshen, by McKaig recounting her about protecting Student A could have been fully satisfied, without any ne ed information regarding Student A. Whatever concerns McKaig may have had there was absolutely no reason for her to disclose to Keshen any identifying credited McKaig’s explanation for her actions, it still could have found that Furthermore, it bears repeating once again that, even if the local board

pregnancy. confidentiality in order to prevent Student A’s parents from learning of her “legitimate safety concerns” justifying McKaig’s breach of student shared by no one in the school district hierarchy, cannot seriously amount to Needless to say, such a subjective belief, which from all that appears was affairs of their own family, including controlling the behavior of their son. belief on her part that Student A’s parents could not be trusted to handl e the for McKaig’s actions amounted to nothing more than a misguided subjective testimony, the local board could reasonably have found that the justification boyfriend if the brother found out that she was s exually active. Based on this getting an abortion, but were concerns that her brother might have hurt her to do with the parents finding out that Student A was pregnant or potentially This testimony indi cates that the purported safety concerns had nothing

concerns within her family. about there was a brother and so we did go into some detail about” the safety guidance counselor also stated that, at the school staff meeting, “[w]e talked the girl was sexually a ctive with the boy.” (Emphasis added.) The other “[t]he concern from the student was if the parent -- if the brother had found out of her parents finding out that she was pregnant. McKaig herself testified that their test imony does not support a finding that Student A had a legitimate fear counselors did offer anything more than the vague conclusions recited above, Perhaps most troubling is that, to the extent that the guidance

Student A’s parents posed a genuine threat to her safety. parents, or any other details prov iding any objective basis for concluding that or abusive behavior by the parents toward Student A or other children of the counselor ’ s prior dealings with the parents, evidence of a history of intemperate example, t here was no testimony regarding the extent or nature of either p. 25 25

received (Student A’s initials, age, grade, and the fa ct that she was pregnant). breach of confidentiality solely upon what Keshen did with the information she McKaig about Student A. But the local board did not hinge its finding of a and therefore prohibited from [re disclosing] the information” she received from state board determined that Keshen “was bound by the attorney - client privilege confidentiality portion of its ruling concerned attorney - client privilege. The The second matter discussed by the state board in the breach of

Boren, 143 N.H. at 264. of factual findings mandated by the clearly erroneous standard. See Taylor to accept the local boar d’s decision on the matter under the deferential review both reasonable and supported by the evidence, the state board was required of Aube & Aube, 158 N.H. 459, 466 (2009), and because this construction is made all underlying findings necessary to support its ruling, see In the Matter was sealed. Because a reviewing tribunal must assume that the fact finder determined that the petition was available to the public for one week before it construction that, based upon its assessment of witness credibility, it the matter, the local board’s decision is amenable to the reasonable “because” or for “accepting that”) in the concluding sentence of its analysis of Thus, despite its inartful use of the word “if” (seemingly as a proxy for weight on t he testimony of Ms. Loughman and Mr. Roberts on this point.” troubling, the local board found that it was “inclined on balance to put greater filed. After describing other aspects of Keshen’s testimony that it found “seemed to suggest” that the petition was automatically sealed when it was the judge ordered it sealed on December 11, while Attorney Keshe n’s testimony proceeding) supported the conclusion that the petition was sealed only when Loughman and Sanford Roberts (who represented Student A in the bypass when the petition was sealed. It determined that the testimony of Attorneys The local board specifically noted that there was conflicting evidence about the state board erred in construing the local board’s decision in this manner. However, a re ading of the local board’s full discussion of this issue shows that presumed that the petition was an open public record for a period of one week. this sentence, the state board concluded that the local board had merely full week.” (Emphasis in state board’s ruling.) By focusing on the word “if” in and enough information to easily identify her was available to the publi c for a information was not sealed until December 11, 2012, [Student A’s] situation, board relied on the following sentence in the local board’s decision: “[If] this decision that the local board did not make a finding on this point, the state when the court ordered that it be sealed on December 11, 2012. To support its December 4, 2012, or whether it was removed from the public record only against the principal was automatically sealed at the time it was filed on explicit finding as to whether the petition for a restraining order brought First, the state board appeared to fault the local board for not making an

safety rationale persuasive, I briefly address these additional matters. because, unlike the majority, I do not find the state board’s relianc e on the p. 26 26

McKaig’s conduct. district may not ha ve been particularly courageous, it hardly provides a retroactive justification for against potential liability in the event it was sued by the parents. Although this strategy by the agreed to the restraining order in the hopes that it would provide the district with legal “cover” had already granted the waiver of parental notification i n the bypass proceeding, the district about her pregnancy; and it seems clear from the context that, after learning that the trial court the district was concerned about its potential liability to Student A’s parents if it did not tell them notification law prevented the principal from telling the parents. Rather, Loughman testified that conclusion that, by assenting to the trial court’s order, the district agreed that the parental McKaig’s employment based in part on” that order. However, the record does not support the grant the [temporary restraining order], and then, five months later, decided not to renew The majority “find[s] it ironic, as well as concerning. . . that the district asked the trial judge to 10 by filing a lawsuit against a superior because of a disagreement with the a court would hold that a subordinate employee does not commit misconduct today’s decision is sui generis. It is hard to imagine another situation in which As will be obvious to anyone reading it who is at all versed in the law,

unfortunately, is the upshot of the majority’s decision. court may believe that the legislature should have done so. Yet that, had enacted suc h a privilege merely because the board or the majority of the board nor this court has the authority to decide this case as if the legislature What is not debatable is that the legislature did not do so; and neither the state t he pregnancy or possible termination of the pregnancy is a debatable point. communications between a pregnant minor and school counselors concerning have created a privilege prohibiting school districts from disclosing to parents RSA 132:34 to the circumstances of this case. Whether the legislature should Valenzuela assumption - of - risk doctrine line of cases or the inapplicability of opinion in vain for any analysis refuting the applicability of the Lewis majority are nowhere to be found. In particular, one searches the majority’s review.” In reality, however, t he “reasoning and principles” relied upon by the application of legislative enactments and well established principles of judicial The majority assures us that its decision is based upon “reasoned

regar ding both insubordination and the breach of Student A’s confidentiality. 10 supported by the record, I would reverse the decision of the state board findings of the local board, and because the local board’s findings were Given the deference the state board should have afforded the factual

— when she filed the peti tion for the restraining order. undisputed that Keshen did in fact redisclose this information — to the court the information about Student A that she received from McKaig, it is board apparently surmised Keshen’s obligations to be regarding redisclosure of school district, in the first place. Furthermore, contrary to what the s tate McKaig disclosed this information to Keshen, who was not an employee of the Rather, the local board found that the breach of confidentiality occurred when p. 27 27

“sugar - coat” what has occurred. be dist ressed when this is pointed out. But its discomfort provides no justification for me to crafted ad hoc to produce the desired outcome. It is understandable that the majority would law or legal principles, but is instead an exercise of raw judicial power in the form of an opinion the fact is that the majority’s decision is not supported by any recognized body of established more readily be explained as a mere academic debate over some nice points of law. However, my disagreements with its decision be set forth less bluntly, for then our differences could assumptions” about the majority’s motivations. The majority undoubtedly would prefer that The majority expresses its disappointment with the “tone” of the dissent and its “incorrect 11

majority’s decision, I respectfully dissent. 11 bandwagon of political correctness that provides the only justification for th e the ordinary logic of probative inferences.”). Because I cannot join the special category, the majority distorts not only the First Amendment but also concurring in the judgment) (“In its zeal to treat abo rtion - related speech as a abortion. See McCullen v. Coakley, 134 S. Ct. 2518, 2545 (2014) (Scalia, J., courts are confronted with cases that implicate the hot button issue of example of the pheno menon of casting normal legal principles aside when adverse impact on the employee. As such, the decision represents another authority, violates neither the law nor the policies of the employer, and has no superior’s work - related decision that is within the scope of the superior’s