Legal concerns echo policy worries being voiced by critics

By Kelly Burch

The N.H. Department of Education’s proposed revisions in New Hampshire’s minimum standards for public schools may violate the state constitution. 

That’s according to written feedback on the standards, known as the 306s, provided by the Office of Legislative Services, an arm of the N.H. Legislature. 

Reviewing a draft proposal for legal compliance, the office flagged more concerns than are typical in a rules review, according to Christina R. Muñiz, senior committee attorney with the office’s Administrative Rules Unit. Those concerns include a potential constitutional issue, which is “pretty rare” to see in the rulemaking process, she added. 

The 306s, a set of administrative rules that govern the minimum standards for public school approval in New Hampshire, have been under revision since 2020. The process typically takes place every 10  years. After paying a contractor $75,000 to facilitate a revision, the state Department of Education introduced its own draft of the 306s in February, and accepted public comment on that document. Granite Staters provided more than 200 pieces of written testimony in response.

Despite that, the draft proposal is moving toward formal adoption. The review by the Office of Legislative Services is typically done before an updated version is introduced to the Joint Legislative Committee on Administrative Rules (JLCAR), which can approve, conditionally approve, or object to the rules. Neither the office nor the committee is concerned with policy; instead, they focus on ensuring that the rules work as intended under New Hampshire law. 

Despite that, the concerns highlighted by the office align closely with those expressed by educators and members of the public who have been critical of the 306 update. The fact that the same issues arose from both a policy and legal standpoint is “really powerful,” said Christina Pretorius, policy director for Reaching Higher NH, a nonpartisan nonprofit focused on education in the Granite State. 

“It really goes a long way in showing that, regardless of your political background, your views on education … that fundamentally there are some serious and very legitimate concerns with this rule proposal,” she said. 

Undermining an adequate education?

Muñiz said the possible constitutional issue centers on changing the word “shall” — which is legally binding — to “may” — which is not—  in “most of the rules.” That seemingly small shift “may create a situation where you don’t have a constitutionally adequate education throughout the state,” she said. 

The New Hampshire Constitution requires the state to fund an adequate education — the subject of over 30 years of lawsuits. Critics of the 306 revision have previously expressed worry that the change could result in less education funding from the state, since fewer subjects would be required. 

Ultimately, the state Supreme Court would need to consider the question of constitutionality, but a finding that the rules are unconstitutional is “a possible outcome,” Muñiz said.

The office’s review highlighted other legal concerns, including the fact that the rules seem to redefine “equity,” tossing aside the current accepted definition. That made portions of the rules on equity unclear, according to Muñiz.

“If a word has a definition, use that definition — don’t make up a new one,” she said.

Educators have expressed concerns about changes in sections on equity throughout the revision process, saying they could water down protections for vulnerable students.

Next steps

With the initial review complete, the Department of Education will likely adjust the draft before submitting a final version for legal review. That must happen at least three weeks before a meeting where the JLCAR — made up of five state representatives and five senators — is set to consider the rules. 

Once the Department of Education brings the updated rule proposal to the joint committee, the committee cannot reject it for policy reasons. It can object in only four circumstances, which are outlined in New Hampshire law:

• If the rule isn’t within the authority of the agency

• If it isn’t within the intent of the Legislature

• If it is not in the public interest

• If it has an economic impact that hasn’t been explained

Critics have said they may try to stop the adoption of the rules based on the public interest provision. However, under the law, that provision cannot be used to make policy objections; instead, it’s used when a rule is unclear or cannot be uniformly applied. 

“It’s not contrary to public interest just because people don’t like it,” Muñiz said. 

Although public comments are now closed on the draft proposal, the public can submit written or verbal testimony to the JLCAR once the 306s are on a meeting agenda, Muñiz said. The feedback must be related to the four outlined circumstances for the committee. 

Pretorius, of Reaching Higher, said it’s important for the public to continue to stay engaged, not just at the state level but with their local school districts. Meanwhile, Reaching Higher is continuing to compile and make public the written feedback from community members and educators.

“We’ve seen a number of very specific recommendations that can make the proposal stronger and advance a vision of a high-equality education system in the state,” she said.

Read the Office of Legislative Services’ Documents

Follow the Granite State News Collaborative’s series on Competency-Based Education to stay up-to-date on this developing story. These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.