New Hampshire Politics

NOW COME the petitioners in this matter, by counsel, and respectfully submit the following memorandum of law in support of their motion for compensatory educational services.

I. Introduction

In HB 117, passed into law on April 29, 1999, the State set its standard for educational adequacy. The State chose to use a single outcome factor, the statewide assessment tests, to determine if school districts are providing an adequate education to their students. While petitioners do not concede that the State's adequacy standard fulfills its constitutional obligation, many of the schools in the petitioner school districts do not meet the State's standard. The State has failed to develop a plan or mechanism to assist these schools in meeting the State's adequacy standard.

Therefore, petitioners request that this Court order the State to provide the schools that are not meeting the State's adequacy standard with direct compensatory educational services to assist the schools in meeting the State's standard. Petitioners request that the Court permit the petitioners and the State to determine cooperatively the specific compensatory educational services to be provided to the schools in the first instance with Court intervention if the parties cannot agree upon the appropriate services to be provided by a date certain. Petitioners request that this Court set a deadline of October 31, 1999 for the parties to agree upon services and that the services be provided as soon as possible this school year and continue to be provided until the schools meet the State's standard.

II. Legal Analysis

A. The State's Standard of Educational Adequacy

The State's standard for educational adequacy in HB 117 is based solely upon the performance of school districts on the New Hampshire Educational Improvement and Assessment Program (NHEIAP) tests (also referred to as the state assessment tests). The details of the State's adequacy standard are set forth in the purpose and intent section of HB 117 which states:

The general court finds that school districts that have 40 to 60 percent of students scoring at or above the basic level on the NHEIAP tests [the state assessment tests] are those districts that are meeting the relevant outcome expectations and are providing an adequate education.

Thus, under HB 117, school districts with less than 40 to 60 percent of their students scoring basic and above on the state assessment tests are not providing an adequate education.

The Department of Education (DOE) has determined which school districts meet the 40 to 60 percent standard. The DOE's assessment is attached as Exhibit 3 to Petitioners' Memorandum of Law in Support of Motion for Sanctions.. The DOE assessment shows that 22 school districts are not providing an adequate education at the elementary level and 19 school districts are not providing an adequate education at the secondary level. The list includes three of the five petitioner districts, Allenstown, Franklin and Pittsfield. Lisbon school district does not meet the standard at the secondary level and barely meets the standard at the elementary level with 41.83 percent of students scoring basic and above. Claremont school district squeaks by at the district level in both the elementary and secondary levels with 41 and 40 percent of students scoring basic and above respectively.

While HB 117 directs the DOE to assess educational adequacy at the school district level, this Court's Claremont decisions make clear that adequacy must be assessed at each school, not just at the school district level. In Claremont I, this Court held that the New Hampshire Constitution imposes a duty on the State to provide a constitutionally adequate education to every educable child in the public schools in this state.... Claremont School Dist. v. Governor, 138 N.H. 183, 184 (1993) (Claremont I) (emphasis added). In Claremont II, this Court stated:

We emphasize that the fundamental right at issue is the right to a State funded constitutionally adequate public education. It is not the right to horizontal resource replication from school to school and district to district.... But when an individual school or school district offers something less than educational adequacy, the governmental action or lack of action that is the root cause of the disparity will be examined by a standard of strict judicial scrutiny.

Therefore, it is clear that the State's constitutional obligation is to assess educational adequacy at each school and not just at the school district level. Further, as a practical matter, assessing adequacy at the district level is an inaccurate method because it is possible for some schools within a school district to meet the State's adequacy standards, while others do not. In such a situation, the schools that do not meet state standards should be entitled to state assistance in meeting state standards, but the entire school district would not necessarily be entitled to such relief.

Therefore, petitioners request that relief be provided to the schools within their districts that do not meet the State's adequacy standard, not just the districts that fail to meet the standard at the district level. To make the assessment of which schools are not meeting the State's standard, petitioners have examined their schools' 1997 NHEIAP test results.[1] The NHEIAP test is administered in the third, sixth and tenth grades. The test measures two substantive areas at the third grade level: language arts and math; and four substantive areas at the sixth and tenth grade levels: language arts, math, science and social studies. Each area receives its own assessment and own score. Petitioners set forth the schools in its districts that do not meet the State's adequacy standard by subject matter and grade in the tables below.

Table 1

3rd Grade Scores

Table 2

Table 3

For each school that is below the State's adequacy standard of 40 to 60 percent scoring basic and above in a given subject area, petitioners request direct compensatory educational services to the schools in the area(s) in which they are below the State's standard. Thus, based upon the third grade scores, petitioners request that Allenstown Elementary School be provided with compensatory services in the areas of language arts and math to help improve the school's third grade assessment scores in those areas, and that the Bessie Rowell School be provided with compensatory educational services in the area of language arts to help improve the school's third grade assessment scores. Petitioners' other elementary schools meet the standard of 40 to 60 percent scoring basic and above at the third grade level.

Based upon the sixth grade scores, petitioners request that Armand Dupont School be provided with compensatory services in the areas of language arts, math, social studies and science; that Claremont Middle School be provided with compensatory services in the areas of math, social studies and science; that Franklin Middle School be provided with compensatory services in the areas of language arts, math, social studies and science; that Lisbon Regional Elementary be provided with compensatory services in the areas of math, social studies and science; and that Pittsfield Elementary School be provided with compensatory services in the areas of language arts, math, social studies and science.

Based upon the tenth grade scores, petitioners request that all of the high schools noted in Table 3 receive compensatory services in the areas of math, social studies and science.

The compensatory services to be provided to the schools in the petitioner districts should be targeted towards helping the schools improve their students' test scores in the areas where the schools do not meet the State's standard of 40 to 60 percent scoring basic and above on the assessment tests. The services to be provided could include technical assistance to the school, professional development training to the teachers to assist them in educating students in the areas where the school does not meet the State's standards, and curriculum development to assist the schools in updating and aligning their curriculum with the State's curriculum frameworks. The assistance with curriculum development would be particularly useful to the schools because the State's curriculum frameworks were developed in conjunction with the NHEIAP test and the test is, in many ways, a test of the extent to which the frameworks have been implemented at the school. Unfortunately, due to a lack of resources, many of the schools in the petitioner districts have been unable to fully implement the frameworks to date and the State does not currently provide any meaningful assistance in this regard.

As stated previously, at this stage, petitioners simply request that the Court order that the schools listed in Tables 1, 2 and 3, are entitled to compensatory services and then allow the schools and the State to work together to develop the specific compensatory services to be provided with a deadline of October 31, 1999. If the parties cannot agree upon the services to be provided by that time, petitioners request that this Court permit petitioners to file a subsequent pleading with this Court detailing the specific services to be provided to each school and that the Court make a ruling on petitioners' request. Petitioners request that the services be provided to the schools beginning as soon as possible this school year and continue until the schools meet the State's standard.

B. Petitioners' Requested relief is fair and appropriate

While petitioners do not concede that the State's standard for educational adequacy is constitutional, under the State's own standard the schools listed in the above tables are not providing an adequate education and the State is not providing any assistance to help them do so. It is the State's obligation to provide an adequate education to every educable child in the public schools of New Hampshire. Claremont I, 138 N.H at 184. Thus, when students in public schools are not meeting the State's own standard for educational adequacy, as measured at the school level, the State must take some action to assist the schools. The State has not developed a plan or any mechanism to assist the schools that do not meet the State's adequacy standards and, therefore, petitioners seek a judicial remedy to compensate for the State's failure to meet its affirmative obligations.

Petitioners' request for compensatory services is within this Court's inherent authority to craft a remedy for constitutional violations. It is a settled principle that a denial of a constitutional right `demands some vindication in the law.' Rockhouse Mt. Property Owners Assoc. v. Town of Conway, 127 N.H. 593, 598 (1986); see also N.H. CONST. pt. I, art. 14.

As this Court recognized in Rockhouse, once an infringement has been established, the issue becomes one of the "appropriate way to redress the denial." Rockhouse, 127 N.H. at 598.

This Court ultimately has the authority to fashion a remedy for the violation of a particular constitutional right and will do so where established remedies are inadequate. Id.; see also Marquay v. Eno, 139 N.H. 708, 722 (1995). As this Court stated in Marquay [w]here no established remedy exists or the established remedies would be meaningless, however, we will not hesitate to exercise our authority to create an appropriate remedy. 139 N.H. at 722.

In this case, the infringement of the right to an adequate education is clear. The State has set its standard and the schools listed in Tables 1, 2 and 3 do not meet the standard. The State has not established any remedy for the children that suffer from the State's failure to provide an adequate education. Thus, petitioners ask this Court to create an equitable remedy that will allow the children of this State to vindicate their constitutional rights by obligating the State to provide schools in the petitioner districts that are currently deficient under the State's adequacy standard with compensatory services targeted towards assisting the schools in meeting the State's standard.

Petitioners proposed remedy will provide the school-aged children of this State with some meaningful recourse when the State fails to provide an adequate education at the school level as measured by the State's own standard. Petitioners proposed remedy is fair and reasonable. School-age children are compelled to attend public schools in New Hampshire. RSA 193-1. Without a remedy for the State's failure to provide them with an adequate education, as measured at the school level, our children will be required to attend inadequate schools and will not have any recourse unless they are home-schooled, attend private school, or move to another town. Such a result would undermine the fundamental nature of the right to an adequate education and would allow the State to abrogate its constitutional responsibilities without any consequences. The petitioners proposed remedy, or some similar remedy, must be available to enforce the right to an adequate education if the right is to have any meaning.

The United States Supreme Court has recognized that courts have the inherent authority to craft appropriate and meaningful remedies for constitutional violations. In Swann v. Board of Education, 401 U.S. 1 (1971), a case that involved the equitable remediation of a school district's failure to comply with the desegregation requirements of Brown v. Board of Education, 347 U.S. 483 (1954), the Court stated:

Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.

[A] school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.

In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.

As with any equity case, the nature of the violation determines the scope of the remedy. In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy....

The Court has also found remedial educational services to be an appropriate remedy for constitutional violations. In Milliken v. Bradley, 433 U.S. 267 (1977)(Milliken II), the Court affirmed a federal district court's inclusion of remedial and compensatory education components in a desegregation plan for the Detroit public schools. The educational components of the desegregation plan included in-service training for teachers, remedial reading programs, and revised testing procedures necessary to remedy effects of past segregation, to assure a successful desegregative effort and to minimize the possibility of resegregation. 433 U.S. at 273-74.

The Court upheld the lower court's decision as an appropriate exercise of the court's authority to fashion remedies for constitutional violations based upon equitable principles. Id. citing Brown v. Board of Education, 349 U.S. 294, 300 (1955)(Brown II). The Court stated:

Application of those equitable principles, we have held, requires federal courts to focus upon three factors. In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. The remedy must therefore be related to the condition alleged to offend the constitution=85. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution. If, however, school authorities fail in their affirmative obligations judicial authority may be invoked. Once invoked, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.

Id. at 281 (internal citations omitted). The Court found the district court's remedy order met these standards.

The condition offending the Constitution is Detroit's de jure segregated school system, which was so pervasively and persistently segregated that the District Court found that the need for the educational components flowed directly from constitutional violations by both state and local officials. These specific educational remedies, although normally left to the discretion of the elected school board and professional educators, were deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education had these four components been provided in a nondiscriminatory manner in a school system free from pervasive de jure racial segregation.

The petitioners proposed remedy in this case meets the three prongs of Milliken II. The scope and nature of petitioners' proposal is limited to directly addressing the constitutional violation of failing to provide an adequate education. Petitioners' proposed remedy is also remedial in nature and is designed to restore the children who are the victims of the State's failure to provide an adequate education to the position they would have occupied in the absence of the State's failure. Without the assistance requested by petitioners, the State will not take any meaningful action to assist the schools.

Finally, petitioners' proposed remedy takes into account the interests of state and local school officials in two respects. First, petitioners make their request for a remedy because of the State's failure to propose any remedy or assistance for the schools that do not meet the State's adequacy standard. Thus, the State has failed in its affirmative obligations and judicial authority may be invoked.

Second, petitioners' proposed remedy provides representatives of the schools and the State with an opportunity to decide upon the extent and nature of the specific compensatory services to be provided in the first instance without court intervention. Petitioners request that this Court step in and order the details of the services to be provided only if the parties are unable to agree on their own within a certain period of time.

While the State may argue that provisions to assist school districts in providing an adequate education will be addressed by the Adequate Education and Education Financing commission established in HB 117, that committee is not due to report its findings until December 1, 2000 and the findings do not have to be implemented until 2004. Five more years of inadequate education under the State's own standards is not acceptable for the children in these schools. A remedy needs to be implemented beginning this school year.

For these reasons, the petitioners' proposed remedy of compensatory educational services is an appropriate and meaningful remedy that is within this Court's = authority to award.

Petitioner's proposed remedy is also analogous to the remedy of compensatory education in the special education context. Under the Individuals with Disabilities Education Act (IDEA), students must be provided with a free and appropriate education (referred to as FAPE ). When a school does not provide FAPE to a student, the student may sue the school through an administrative process and later in federal court.[3] If the student prevails and establishes that he/she was not provided with a free and appropriate education, the student may be entitled to compensatory educational services as a remedy. See e.g. Burlington School Comm. v. Mass. Dept. of Ed., 471 U.S. 359 (1985); Murphy v. Timberlane, 22 F.3d 1186 (1^st Cir. 1994); Pihl v. Massachusetts Dept. of Educ., 9 F.3d 184 (1^st Cir. 1993).

Compensatory education is a form of equitable relief intended to cure the deprivation of the child's statutory rights. Pihl, 9 F.3d at 187-88. Courts have awarded such relief under a provision of IDEA authorizing courts to grant such relief as the court determines appropriate. 20 U.S.C. 1415(e)(2). Compensatory education awards can take the form of tuition reimbursement for expenses parent's incurred in placing their child in a private school program that provides FAPE, see Burlington supra, or remedial educational services to compensate for services lost during the time the child did not receive FAPE. See e.g. Timberlane, supra; Pihl supra; Burr v. Sobol, 888 F.2d 258 (2^nd Cir. 1989); M.C. v. Central Reg. Sch. Dist., 81 F.3d 389 (3^rd Cir. 1996); Lester H. v. Gilhool, 916 F.2d 865 (3d Cir.1990); Hall v. Knott County Bd. of Education, 941 F.2d 402 (6th Cir.1991); Miener v. State of Missouri, 800 F.2d 749 (8th Cir.1986); Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853 (11th Cir.1988).

The scope of the compensatory educational services to be provided is usually gauged by the extent of the deprivation of the statutory right to FAPE. For example, in Timberlane, the school did not provide any special educational services to a student for two years while the student's parents and the school disagreed about the appropriate placement for the student. 22 F.3d at 1188. The district court awarded compensatory education to the student in the form of two years of additional special education services beyond the student's statutory entitlement to services which ends at age 21 (Murphy was 25 at the time of the action) to make up for the two years of lost services. Id. at 1191. The First Circuit Court of Appeals upheld the order. Id. at 1196.

Similarly, in Manchester School Dist. v. Christopher B., 807 F.Supp. 860 (D.N.H. 1992), the federal district court of New Hampshire found that a student was entitled to 2 =BD years of compensatory education for a schools' failure to provide a student with FAPE. The court stated:

Given that "compensatory education ... is a form of equitable relief," intended to "cure the deprivation of a [disabled] child's statutory rights," the appropriate measure of a compensatory education award is the length of the inappropriate placement. Given that the 1990-91 IEP was inappropriate because it called for placement in a public school, the length of the inappropriate placement in this case is equal to the period of the inappropriate 1990-91 IEP plus the subsequent period, prior to the instant order, during which the School District has failed to provide Christopher with an appropriate (private) placement. Therefore, the School District owes Christopher two and one half years of compensatory education services, to be provided in a manner consistent with Christopher's current entitlement under the Act..

807 F.Supp. at 871-72. See also Jefferson County Board of Education v. Breen, 864 F.2d 795 (11^th Cir. 1988) (Court awarded two years of compensatory education to make up for two years of inappropriate services provided by the school district); Lester H. v. Gilhool, 916 F.2d 865 (3^rd Cir. 1990) (court awarded 30 months of compensatory education because inappropriate placement of student denied student FAPE for 30 months).

The nature and extent of compensatory education services to be provided varies according to the needs of the student and the facts and circumstances of a given case. Such awards have included extra assistance in the form of tutoring to the student, Hall v. Detroit Public Schools, 823 F.Supp. 1377 (E.D.Mich.1993), or summer school, Johnson v. Bismarck, 949 F.2d 1000 (8th Cir.1991), while students are still within the age of entitlement for regular services under the Act (between 3 and 21). In awarding compensatory education past the age of entitlement, as the First Circuit did in Timberlane, courts have directed the parties to take into account the student's educational status and needs at the time the relief takes effect. See e.g. Straube v. Florida Union Free School Dist., 801 F.Supp. 1164, 1181 (S.D.N.Y.1992); Puffer v. Raynolds, 761 F.Supp. 838, 853 (D.Mass.1988).

Much like a request for compensatory educational services in the special education context, petitioners' request for relief in this case is targeted to cure the State's failure to provide students in the petitioner schools with the requisite level of educational programs and services. Petitioners' request is based upon the needs of the students at the school level where adequacy must be assessed utilizing the State's own standard for adequacy. Petitioners' requested relief is simply intended to assist these students in meeting the State's standard.

Therefore, petitioners' proposed remedy is analogous to a statutory remedy employed by courts to remedy deprivations of educational rights. Like the statutory entitlement to FAPE under IDEA, the educable children of this State have an entitlement to an adequate education from their public schools. When the State fails to provide that entitlement to the students, as measured at the school level, a remedy intended to cure the deprivation of the right is appropriate and necessary. School personnel and the State, through the Department of Education, are familiar with the concepts of compensatory educational services and could develop fair and meaningful services to address their deficiencies in meeting the State's standard for educational adequacy.

Therefore, for these reasons, petitioners' requested relief is fair and appropriate under the circumstances. Petitioners request that this Court issue an order stating that the schools listed in Tables 1, 2 and 3 of this memorandum are entitled to compensatory educational services from the State and give the parties until October 31, 1999 to develop the specific services and assistance to be provided. If the parties are unable to reach agreement on the specifics of the services and assistance to be provided, petitioners request that this Court permit further pleadings on the matter and rule on the specific services and assistance to be provided.

III. Conclusion

For the reasons set forth in this memorandum of law, petitioners respectfully request that this Court grant their motion for compensatory educational services and issue an order consistent with petitioners' request for relief.

Scott F. Johnson, Esq.
Stein, Volinsky & Callaghan, P.A.
One Barberry Lane
P.O. Box 2159
Concord, NH 03302-2159
(603) 228-1109

Certificate of Service

I hereby certify that a copy of the foregoing Memorandum of Law has been forwarded this day by first class mail, postage prepaid, to the parties listed on the attached Service List.

[1] The 1997 results were used because that is the same year of results that the DOE used in making its assessment of school district performance. See Exhibit 1 to Petitioners' Memorandum of Law in Support of Motion for Sanctions.

Exhibit 1.

[3] One difference between the statutory right to FAPE and the constitutional right to an adequate education may be that the right to FAPE is held by an individual student and based upon the individual student's needs. The right to an adequate education on the other hand is not based on the exclusive needs of a particular individual, but rather is a right held by the public to enforce the State's duty. Claremont I, 138 N.H. at 192. Petitioners, however, do not base their request for compensatory services upon the needs of any individual student. Rather, they base their request upon the State's failure to meet its own adequacy standard at the school level. Petitioners' requested relief would benefit all of the children in the schools that are below the State's standard.

School	% Basic & above Lang. Arts	% Basic & above Math
Allenstown Elementary	38	34
Bessie Rowell School (Franklin)	32	51