2019-0397, Appeal of Rye School District

pursuant to RSA 193:3 (2018) (amended 2020). We affirm. E.B. (Parents) to reassign their child (Student) to a school in another district decision of the Rye School Board (School Board) denying a request by C.B. and New Hampshire State Board of Education (State Board) overturning the HICKS, J. The Rye School District (District) appeals a decision of the

Education. on the brief, and Ms. Lombardi orally), for the New Hampshire State Board of assistant attorney general, and Jill A. Perlow, senior assistant att orney general, Gordon J. MacDonald, attorney general (Laura E. B. Lombardi, senior

(Barbara F. Loughman on the brief and orally) for the Rye School District. Soule, Leslie, Kidder, Sayward & Lough man, P.L.L.C., of Wolfeboro

C.B. and E. B., self - represented parties, by brief, and C.B. orally.

No. 2019 - 0397 State Board o f Education

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

manifest educational hardship to the chi ld.” RSA 193:3, I. T he reafter, the child at the school to which such child has been assigned will result in a apply to the school board for relief if the person thinks the attendance of the statute pr ovide d, in part, that “[a] ny person having custody of a child may of Student to her new school pursuant to RSA 193:3, I. At that time, the In November p. 2 2017, Parents applied to the School Board for reassignment

school. superintendent until after Parents had decided to place Student in a different but neither filed a bullying complaint nor addressed the issue with the s chool found that Mother had been aware of Rye Elementary School’s bullying policy the new school after the reassignment took place.” The hearing officer also T he hearing officer, however, found that the re were “continuing issues at

according to Mother, there has been no bullying at Student’s new school. Student’s anxiety decreased and she was gaining weight. In addition, was followi ng the 504 plan and Student no longer needed help with homework. elementary school in a different town. According to Mother, the new school to withdraw Student from Rye Elementary School and enroll her in an Sometime before the end of the p. 2 2016 - 2017 school year, Parents decided

assaulted by a peer, had issues with anxiety, and was not gaining weight. could meet Student’s needs. During that academic year, Student was again school believed that such a meeting was not necessary because the 504 p lan Mother requested an Indiv idual Education Program (IEP) meeting, but the discriminat in g against an “otherwise qualified indiv id ual with a di s abil i ty”). 1973, which prohibits any program receiving f e deral funds from excluding or See p. 2 29 U.S.C. § 794 (2018) (codifying Section 504 of the Rehabilitation Act of Student’s attention deficit hyperactivity disorder (ADHD) and anxiety issues. that the p rincipal did not understand Student’s 504 p lan and was not aware of Student and that Student needed to take things more slowly. She also alleged believing that the atmosphere of the mid dle school program was too much for well, at the start of fifth grade, Mother requested reassignment of Student, Although Mother indicate d that fourth grade apparently went relatively

keep Student and the other child apart. school responded to this incident and a subsequent incident by promising to Elementary School principal, but she declined to file a bullying report. The and was allegedly assaulte d by one of them. Parents met with the Rye other pupils. In third grade, Student was pinched and poked by other pupils socially. Due to Student’s small size, she is often picked up and carried by hinders phys ical growth and causes Student to fall behind academically and Student’s mother (Mother), Student has a growth hormone deficiency that presentations of both parties at the hearing. According to the testimony of recommendation to the State Board, which, in turn, largely summarized the The following background facts are taken from t he hearing officer’s p. 3 3

5 p. 3 34 (1999) (quotation and brackets omitted); s ee RSA 541:2 (2007). chapter 541 only when so authorized by law.” Petitio n of Hoyt, 143 N.H. 533, “Appeals from administrative proceedings may be taken under RSA

I. Appellate Review

RSA 19 p. 3 3:3.” [chapter] 541, a [State] Board finding of manifest educational hardship under Board “seeks clarification as to whether a party can appeal, under RSA consider a preliminary issue raised by the State Board; specifically, the State Fact.” (Bolding omitted.) Before reaching these arguments, however, we 541 - A:35 by failing to rule upon each of the. . . District’s proposed Findings of correct standard for manifest educational hardship; and (6) “violat[ing] RSA District’s witnesses”; (4) failing to follow its own rules; (5) failing to apply the reviewing a partial transcript that omitted most of the testimony of the . . . evidence in the record”; (3) denying the District’s “request for rehearing after decision where the State Board’s “concl usions are not supported by competent rejecting the hearing officer’s findings and reversing the School Board’s judgment for that of the hearing officer on matters of witness credibility; (2) R. 10, to this cou rt arguing that the State Board erred by: (1) substituting its The District filed a n appeal from the administrative agency, see Sup. Ct.

Board’s denial of reassignment. the hearing officer’s recommendation and its decision to overturn the School rehearing, the State Board issu ed its final decisio n, reaffirming its rejection of address the other grounds in the District’s motion at that time. After the purpose of rehearing oral arguments” and, in light of that decision, declined to 212.02(f)), the State Board granted the motion for rehearing “for the limited A: p. 3 3 1, VII (2007) and New Hampshire Administrative Rule Ed 212.02(f) (Rule Acknowledging that it failed to record its proceedings as required by RSA 541 that the State B oard violated its rules by failing to record the hearing before it. The District moved for a rehearing on a number of grounds, including

recommendation, thereby overturning the School B oard’s decision. voted to accept the hearing officer’s report but reject the hearing officer’s State Board, which scheduled oral argument on the matter. The State Board P arents filed an exce ption to the hearing officer’s recommendation with the “[t]here was no basis for reassignment due to Manifest Educational Hardship.” at the Rye School had a detrimental or negative effect on the Student” and that of the appeal, concluding that Parents “failed to demonstrate that attendance After an October 2018 hearing, the hearing officer recommended denial

request. P arents appealed the School Board’s decision to the State Board. superintendent informed Parents that the School Board had denied the p. 4 4

assumed without deciding that the action was properly before the court under teacher’s suspension under RSA 189:31. See RSA 189:31 (2018). There, we jurisdictional basis for an appeal of the State Board’s decision regarding a (2001), we declin ed to address the argument that RSA 21 - N:11, III provided a clean s late with respect to this issue. I n Appeal of Morrill, 1 p. 4 45 N.H. 692, 695 We decline to addre ss these arguments, because we are not writing on a

final decision of the State Board.” N:11 “serves as a catch all reference to authorize appeals to this Court for any does not refer to RSA chapter 5 p. 4 41, the reference to that chapter in RSA 21 - RSA 541:2. More specifically, the District contends that although RSA 193:3 reference to RSA 541,” it satisfies the “so authorized by law” requirement of District, on the other hand, argue s that because that section “contains a clear not state that all Board decisions are subject to appeal under RSA 541.” T he RSA 21 - N:11, III does not appear to create a substantive appeal right as it does this enactment authorizes this appeal, noting that “[t]he express language of III.” RSA 21 - N:11, III (2020). T he State Board expresse s doubt as to whether of education, except those disputes governed by the provisions of RSA 21 - N:4, 541, of any dispute between individuals and school systems or the department considered final decisions of the department of education for purposes of RSA State Board shall “[h] ear appeals and issue decisions, which shall be Peirce, the legislature enacted RSA 21 - N:11, which provide s, in part, that the S ubsequent to our decisions in Landaff School District and Appeal of

preschool special education program). State Board decision declining to make an original assignment of a child to a 332, 333 (1976) (decid ing, without comment, an RSA chapter 5 p. 4 41 appeal of a comment. S ee RSA 541:6 (2007); cf. Swain v. State B d. of Educ., 116 N.H. we accepted an appeal of an RSA 193:3 decision under RSA 541:6 without writ of certiorari. Id. In Appeal of Peirce, 122 N.H. 762, 763 (1982), however, (S upp. 1970)). Accordingly, we reviewed the State Board’s decision under a and binding.’” Landaff Sch ool Dist., 111 N.H. at 318 (qu oting RSA 193:3 but on the contrary provide [d]: ‘The decision of the state board shall be final as then in force, “ma [d e] no provision for appeal from orders of the State board, State Board of Ed ucation, 111 N.H. 317, 318 (1971), we noted that RSA 193:3, chapter 541 or must obtain a writ of certiorari. In Landaff Sch ool Dist rict v. review of a State Board decision under RSA 193:3 may appeal under RSA Our decisions have not been uniform as to whether a party seeking

Petitio n of Hoyt, 1 p. 4 43 N.H. at 534 (quotation and brackets omitted).

provisions of chapter p. 5 5 p. 4 41 is not authorized by law. made to chapter 541 in any given statute, an appeal under the every administrative agency in the state. Unless some reference is chapter 541 do not provide an appeal from the determination of We have interpreted this clause to mean that the provisions of 5

decide all cases over which it has jurisdiction, the general rule is Consistent with an administrative agency ’ s duty to hear and

explained: Appeal of Dell. Appeal of Dell, 140 N.H. 48 4, 49 p. 5 5 (1995). In Appeal of Dell, we “adequately explains the grounds for its decision as we. . . articulated in” a hearing officer ’ s decision does not violat e due process as long as the agency We have held that an administrative agency’s rejection or modification of

aid our analysis. State v. Ball, 124 N.H. 226, 231 - 33 (1983). District ’s claims under the State Constitution and rely upon federal law only to raise due process challenge against a state agency). We first address the (citing conflicting case law and assuming, without deciding, that town could State Board. See Appeal of Town of Bethlehem, 1 p. 5 54 N.H. 314, 328 (2006) deciding, that the District may bring its due process challenges against the officer’s recommendation. For purposes of this appeal, we will assume, without a number of respects related to the State Board’s rejection of the hearing The District argues that the State Board violated its due process rights in

II. Due Process Violations

substantive arguments on appeal. novo.” Id. Applying this standard of review, we now turn to the District’s and reasonable.” Id. “We review the [State] Board’ s rulings on issues of law de omitted). “The [State] Board’ s findings of fact are presumed prima facie lawful unreasonable.” A ppeal of Dunbarton Sch. Dist., 169 N.H. at p. 5 54 (quotation clear preponderance of the evidence before us, that it is unjust or [State] Board ’ s decision, except for errors of law, unless we are satisfied, by a unreasonable or unlawful.” RSA 541:13 (2007). “We will not disturb the Board has the burden of demonstrating that the decis ion “is clearly Under RSA 541:13, a party seeking to set aside a decision of the State

is appealable under RSA chapter p. 5 541. that a State Board finding of manifest educational hardship under RSA 193:3 Appeal of Farmington School District and Appeal of Dunbarton School District, the State Board’s request for clarification by holding, in accordance with precedent when neither party had asked us to do so). Accordingly, we answer N.H. Attorney Gen., 1 p. 6 69 N.H. 509, 522 (201 6) (declining to reconsider prior Dunbarton School District, stare decisis impels us to follow them. See Reid v. reexamine or overrule Appeal of Farmington School District and Appeal of 169 N.H. 50, 54 (2016). Because the State Board has not asked us to District, 168 N.H. 72 6, 730 (2016), and Appeal of Dunbarton School District, N:11, III for an RSA chapter 541 appeal in Appeal of Farmington School 695. Subsequently, without elaboration, we found jurisdiction under RSA 21 decision is appealable under RSA chapter 541.” Appeal of Morrill, 145 N.H. at RSA chapter 541, “[g]iven the State’s apparent acquiescence that the board’s 6

transcript of the October 2018 hearing contains numerous omissions and is We have reviewed the record and, although, as discussed below, the

regarding the credibility of witnesses in reaching their decisions. neither the H earing O fficer nor the [State] Board made findings involve con flicting testimony between witnesses about events, and negative effect on Student. . . . [T]he evidentiary hearing did not to whether attendance at the Rye School had a detrimental or information documented in the records and provided opinion s as The wit nesses’ testimony essentially summarized the factual

credibility. It asserts: State Board, on the other hand, argues that this case did not turn on witness instant matter” because there was a “dispute as to the facts of the case.” The witnesses.” T he District contends that there was a “credibility issue in the “substituted its judgment for that of the hearing officer on credibility of having delegated fact - finding responsibility to the hearing officer, it then The District first argues that the State Board violated due process when,

N.H. 282, 287 (2007). making the claim] must show actual prejudice.” Appeal of Omega Entm’t, 15 p. 6 6 496. Furthermore, “b efore we will evaluate a due process claim, [the party using its own expertise and technical judgment.” Appeal o f Dell, 140 N.H. at however, an agency’s board may “properly resolve[] evidentiary conflicts by (emphasis added). In evaluating opinion evidence contained in the record, statements.” Appeal of Hopkinton Sch. Dist., 151 N.H. 478, 482 (2004) factual determinations that depend upon the credibility of the witnesses’ reject a hearing officer’s findings of fact, the agency’s board may not “make administrative agency’s general authority, as outlined in Appeal of Dell, to limited to reviewing the record.” Id. at 496. Thus, n otwithstanding an assessments, was delegated by the board to a hearing officer, the board’ s role is hearing the evidence and making factual determinations, including credibility Id. at 493 (citations omitted). We also noted that where “the responsibility for

of the record. out the agen cy ’ s decision based upon an independent examination grounds for such different decision, and fully and particularly s et rejects an advisory decision, it must adequately explain the W e hold, however, that w here an administrative agency

the board. entitled to weight, they may be accepted, rejected, or modified by administrative record. While his findings and conclusions are hearing officer ’ s decision is a relevant and important part of the binding. Although the final decision must be that of the board, the that a hearing officer ’ s decision is merely advisory, and not p. 7 7

parents to pursue the new placement. environment resolved or alleviated the issues that prompted the shows that placing the student in a different educa tional accommodations only increased the student’s anxiety. The record delays and anxiety made her ill - suited. The failure of those into an educational environment to which her developmental offered accommodations [which] were designed to fit the student structure for which she was not developmentally ready. The school adequately resolved, and the stress of trying to navigate a school number of reasons, including ongoing bullying that was never showed that the student’s assignment aggravated he r anxiety for a made her school assignment detrimental to her. The record combination of physical, social, and academic challenges that this case. The student had an unusual and extraordinary School Board’s m anifest e ducational h ardship policy] were met in The record reflects that all three of th[e] criteria [of the Rye

In its order after rehearing, the State Board elaborated further:

student was placed in another school. student’s issues were satisfactorily addressed only when the problems faced by the student. As reflected in the record, the fit t he student into the school’s program did not alleviate the many needs. The record showed that the district’s ongoing attempts to sufficient to meet the student’s unique educational and social parent’s concerns, but disagreed that those accommodations were the Rye School District offered accommodations to address the The State Board accepted the Hearing Officer’s finding that

State Board stated its reasoning in its initial order as follows: With respect to its rejection of the hearing officer’s recommendation, the

officer’s recommendation.” We disagree. Board “did not adequately explain the grounds for its rejection of the hea ring an adequate explanation for rejecting those fact findings,” and that the State process rights by rejecting the hearing officer’s fact findings without grounds or The District next argues that the State Board “violated [the District’s] due

been provided with[,] which were extensive exhibits.” some voices to the record, . . . the voices supported the record that we have statements. Indeed, as one board member explained, “while the transcript put factual determinations that depended upon the credibility of witness es’ Board members’ delibera tive discussions, that the State Board did not make conclude, based on the record as a whole, including the transcript of the State difficult to follow, we agree with the State Board’s characterization. We p. 8 8

re cord. cannot conclude that the State Board’s conclusions a re not supported by the continued anxiety, and Student’s progress at the out - of - district school. We records of the District’s interventions, Parent’s continued complaints, Student’s deficiency and resulting small stature, ADHD, and anxiety. It also contains “physical, social and academic challenges,” including her growth hormone disagree. The record contains extensive documentary evidence of Student’s State Board were not supported by competent evidence in the record, we T o the extent t he District contends that the conclusions reached by the

of educational environment that this child needed. accommodations offered, they didn’t succeed in creating the kind record remains p retty clear that, despite the numerous successful in resolving the . . . issues in this case. To me, the on listing the facts, but whether those accommodations were made, which is what I think the Hearing Officer was focusing on, the crux of this issue . . . - - not whether accommodations were accommodations were not satisfactory. And that, to me, is really but [the] factual record I think pretty clearly indicates that those It seemed to me that. . . accommodations were made repeatedly

Dist., 16 p. 8 8 N.H. at 731. As one State Board member stated: had a n egative or detrimental effect on Student. Cf. Appeal of Farmington Sch. circumstances were unique and whether attendance at Rye Elementary S chool but, r ather, were to the ultimate conclusion s as to whether Student’s A gain, however, any points of disagreement were not as to the underlyi ng facts, contradict[]” a number of specific findings of fact made by the hearing officer. The District argues that the State Board’s conclusions “directly

in consistent with district policy”). clearly erroneous the local board’ s conclusion that [employee ’ s] actions were accepted the local board’ s account of what [employee] did [,]. . . but found “was not a de novo factual determination,” but “[r] ather, the state board reached by the local board, as to whether employee had been insubordinate, N.H. at 731 (explaining that the State Board’s conclusion, contrary to that of law, which we review de novo.”); c f. Appeal of Farmington Sch. Dist., 16 p. 8 8 642, 649 (2008) (“[T] he interpretation of a tribunal’ s order presents a question ultimate conclusions based the reon. See Guy v. Town of Temple, 157 N.H. disagreeing with the hearing officer’s interpretation of those facts and his We interpret this decision as accepting the h earing officer’s factual findings but Hearing O fficer’s R eport and den[ied] the H earing O fficer’s R ecommendation [].” hearing officer’s factual findings, we disagree. The State Board “accept [ed] the To the extent the Di strict asserts that the State Board rejected the

Appeal of Dell. See Appeal of Dell, 140 N.H. at 4 p. 9 93. We conclude that these explanations are adequate under the standard in 9

under the State Con stitution. Accordingly, we reach the same result under the Federal Constitution as we do Appeal of Omega Entm’t, 156 N.H. at 287; Oroh v. Holder, 561 F.3d at 65 - 66. rulings of law when arriving at his Final Order” does not violate due process); reject the [Administrative Law Judge ’ s] recommended findings of fact an d Director of the Office of Thrift Supervision’s “absolute discretion to accept or Supervision, 73 F.3d 1242, 1244, 1250 (2d Cir. 1 p. 9 996) (concluding that Acting circumstances. See Appeal of Dell, 140 N.H. at 493; Cousin v. Office of Thrift District no greater protection than does the State Constitution under these process under the State Constitution. The Federal Constitution offers the We conclude that the Distric t has failed to demonstrate a violation of due

not prejudicial. Id. these circumstances, we conclude that the deficiencies in the transcript were demonstrated that it was unable to file a more comprehensive one. Under contended at oral argu ment that the affidavit was insufficient, it has not the testimony of both of the District’s witnesses. To the extent the District State Board the affidavit of a participant at the October 2018 hearing detailing [Board of Immigration Appeals] or th[e] court”). The District submitted to the available to Oroh, yet was never provided — by affidavit or otherwise — to the himself, or were comments by his attorney” and, therefore, was “readily where “all of the missing information came during testimony from Oroh its absence is not prejudicial.” Oroh, 561 F.3d at 66 (finding no prejudice a missing transcript reasonably could be recreated by the complaining party, or inaccurately transcribed were its own witnesses. “The law is pellucid that if witnesses whose testimony the District claims was missing from the transcript We conclude that the District has failed to show actual prejudice. The

(quotations and citations omitted)). his case and that they materially affect his ability to obtain meaningful review” he must show at a bare minimum that the gaps relate to matters material to sufficient to rise to the level of a due process violation,” or, “[m] ore specifically, [the petitioner] must show specific prejudice to his ability to perfect an appeal immigration context, that “to succeed on a claim of inadequate transcription, (quotation omitted)); O roh v. Holder, 561 F.3d 62, 65 (1st Cir. 200 p. 9 9) (noting, in specific prejudice to his appeal resulting from the incompleteness of the record” criminal context, that “in order to obtain a new trial, a de fendant must show District resulted. Cf. State v. Marshall, 162 N.H. 657, 672 (2011) (noting, in Board’s ability to provide meaningful review that actual prejudice to the deficiencies in the October 2018 hearing transcript so hindered the State To prevail on its due process claim, the District must show that the

before the hearing o fficer omitted testimony of the District’s two witnesses. decision.” According to the District, the transcript of the October 2018 hearing by relying on the incomplete and inaccurate record in making its final The District next argues that the State Board “deprived [it] of due process p. 10 10

existence of unusual and extraordinary circumstanc es and the detrimental was “the District’s local board policy,” which required Parents “to prove the expired, the only applicable policy at the time of the School Board’s hearing appeal, the District ’s con tention that because the State Board’s policy had that Manifest Educational Hardship existed.” We accept, for purposes of this the correct standard for Manifest Educational Hardship and improperly rul[ing] The District next argues that the State Board erred by failing to “apply

IV. Manifest Educational Hardship

acquiesced to it”). preserved where “defendant did not object to the trial court ’ s ruling, but rather trial court erred in precluding him from cross - examining the victim” was not v. Porter, 144 N.H. 96, p. 10 100 – 01 (1999) (concluding defendant’s claim that “the District did not request to conduct cross - examination at the hearing. See State Parents poin t out, and the District’s counsel conceded at oral argument, the cross - examine Parents, we conclude that this claim is not preserved. As Furthermore, to the extent the District challen ges the lack of an opportunity t o prejudicial to the party claiming it.” (quotation and brackets omitted)). (1992) (“F or an error to require reversal on appeal, it must have been that it is entitled to appellate relief. See Giles v. Giles, 136 N.H. 540, 545 relied upon the prior hearing before it. Accordingly, the District has not shown contend that, despite rehearing oral argume nts, the State Board impermissibly hearing tainted the State Board’s decision on rehearing. The District does not any deficiencies in the original hearing or how the alleged errors in the prior oral arguments.” T h e Distri ct does not explain how the rehearing failed to cure granted the District’s motion for rehearing “for the limited purpose of rehearing Board acknowledged that it failed to record the January 10 hearing and We note that in response to the District’s motion for rehearing, the State

and that the State Board failed to record the hearing. The District also asserts that it had no opportunity to cross - examine the parent

officer. contradicted by the record and findings of fact of the hearing statements and claims that wer e not in the record or were during which it allowed the parent to testify, making a number of Student’s parents as a witness and conducted a two - hour hearing, Instead of following its rules, the [S]tate [B]oard swore in one of

record before the State Board. See N.H. Admin. R., Ed 212.02(b). It argues: 212.02(b), which grants parties the right to a p. 10 10 - minute oral argument on the The District contends that the State Board erred by failing to follow Rule

III. Violation of R ule 212.02(b) p. 11 11

BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

clearly unreasonable or unlawful.” RSA 541:13. Accordingly, we affirm. In sum, the District has failed to show that the State Board ’s decision “is

A:35. See Appeal of Malo, 169 N.H. 661, 669 (2017). sufficient to permit appellate review, it satisfies the requirements of RSA 541 that the State Board’s decision includes findings of fact and conclusions of law of Support Enforcement Officers, 147 N.H. 1, 9 (2001). Because we conclude with an adequat e basis upon which to review [the agency’s] decision.” Petition state the factual findings supporting its conclusion is “to provide this court officer has already ruled. The purpose of an agency’s statutory obligation to redundant task of separately ruling on requested findings on whi ch the hearing findings. Nothing in RSA 541 - A:35 requires the State Board to go through the proposed findings and, as we previously noted, the State Board accepted those The District received rulings by the hearing officer on each of its

include a ruling upon each proposed finding”). We disagree. agency rules, a party submitted proposed findings of fact, the decision shall 541 - A:35 (2007) (providing, in pertinent part, that “[i] f, in accordance with by failing to rule on each of the District’s proposed findings of fact. See RSA Finally, the District argues that the State Board violated RSA 541 - A:35

V. Violation of RSA 541 - A:35

issues that prompted th e parents to pursue the new placement.” “satisfactorily addressed” Student’s issues and either “resolved or alleviated the needs. The State Board further concluded that placement in the new school ac commodations, but concluded that they were insufficient to meet her unique effect on her. The State Board accepted that the school had offered Student and that Student’s placement at Rye Elementary School had a detrimental and extraordinary combination of physical, social, and academic challenges” The State Board specifically concluded that Student “had an unusual

State Board failed to apply that standard. or negative effect of the current placement on” Student. We disagree that the