This is the story about Croydon’s school choice program written by Dr. Jody Underwood. As a Croydon School Board member since 2010, she has played a critical role in the development and implementation of the program as well as the ongoing legal battle and legislation efforts.
The House Education Committee will hold a public hearing on the town tuitioning bill, HB 557 (2017) relative to school attendance in towns with no public schools, on Wednesday, January 25th at 1:00pm in room 207 of the Legislative Office Building. It is the same language that was approved in the Committee of Conference for last year’s efforts. This legislation would help numerous other small towns across the state that do not provide full K through 12 education in-district.
Please contact the House Education Committee as soon as possible as they may exec the bill anytime after the public hearing concludes. To contact the entire committee, you may send one email to HouseEducationCommittee@leg.state.nh.us. Brief phone calls are most effective, but personalized emails directed to an individual are also helpful; mention if you are a constituent. The entire list of members’ contact information plus an easy copy/paste list are available here.
Abstract: The Croydon school district ended an exclusive contract with a receiving school district, extended school choice beyond public schools to include private non-religious schools, was challenged by the state Department of Education, found lawyers who are not entrenched in the education system, and learned that the goal of the state Department of Education is not to educate students.
Greysan Beaulieu attended Croydon Village school through the 3rd grade. Then she went to a neighboring Newport school for 4th and 5th grades, as every other Croydon child before her did for generations. During those two years, something happened to her. She stopped doing well in school and she stopped wanting to do anything at home. She cried every day. She was failing classes. The school didn’t know what to do with her and she was falling through the cracks, despite her parents’ requests for solutions. When school choice started in Croydon, her parents chose to send her to Newport Montessori School (NMS). It was such a good fit. There were no more tears and by the 3rd quarter of her first year, Greysan was back on honor roll. This program has been life changing for the Beaulieu family, who could not have sent their daughter to NMS on their own.
Croydon NH has a population of 651 people. It has the longest continuously-running one-room schoolhouse in the country, operating since 1780. Croydon Village School currently operates kindergarten through 4th grade with multi-age classrooms. Our three teachers are not part of a union, and they take care of most of the daily needs of the students and the building. One of them is a teacher-principal. In the 2016-17 school year, we have fewer than 30 students in grades K-4 and fewer than 40 students in grades 5-12.
Because Croydon only had the resources to educate students through 3rd grade, we needed to send our children to other schools. Croydon had an exclusive contract, called an AREA agreement, with the Newport school district. As part of this contract, Croydon agreed to send all its students in 4th grade or above to the Newport Public Schools, and Newport agreed to accept all our students. Croydon had been sending its students to Newport for as long as anyone can remember. However, at this point in time Newport was rated a “district in need of improvement” under the No Child Left Behind law. That is, all their schools were failing.
An interesting aspect of an AREA agreement is that while they contractually have a 10-year duration, they remain in effect until the school districts formally end them. According to RSA 195-A:14, after the third year of an AREA agreement school districts can start going through the steps to end it.
In 2006, a meeting was set up by the school board to establish a citizen’s committee to determine which steps Croydon should take to address the upcoming 2010 expiration of the AREA Agreement with Newport School District. During this process, several committee members raised the question of which school or schools Croydon voters would like to send their children to.
School boards move slowly. In 2008, the school board decided to send a survey to every household in Croydon with this question:
Do you favor parents having a choice among schools for students in grades 4-12 or do you prefer an exclusive agreement with a single school district?
Eighty-six Croydon households responded to the survey with over two thirds (63) selecting parental choice. Due to the overwhelming preference for school choice, the committee unanimously recommended that Croydon terminate the AREA Agreement and develop a post-AREA Agreement plan that would provide the maximum practical degree of parental choice for grades 4-12.
However, per state law, the Croydon School District first needed to dissolve the informal citizen’s committee and formed an AREA Review Committee. This happened after a March 2010 public vote at the annual school board meeting.
After months of research by this new Committee, which included determining whether schools around Croydon would accept our students, the AREA Review Committee again recommended that the agreement with Newport be terminated. They drafted a written plan for ending the agreement. The withdrawal plan explained Croydon’s approach for enrolling students in many different schools – including private, religious, and public – based upon parental choice for each student. This plan was sent to the State Department of Education for feedback in November 2011.
The State DoE returned Croydon’s draft plan with multiple comments written in the margin. These comments offered Croydon guidance about how to roll out the termination plan in conformity with the law. Pertaining to private schools, the State DoE commented that to meet compulsory attendance requirements, students could only be sent to private schools that were approved. They also said we needed to remove religious schools from the options. None of the comments stated or implied that Croydon could only send students to public schools.
The Croydon Review Committee revised its plan based upon the comments by the State Board. It included explanations about how the Withdrawal Plan was changed to continue to include private schools (specifically naming Newport Montessori School) and to remove religious schools. It was then resubmitted.
In February 2012, the State DoE indicated four deficiencies with Croydon’s withdrawal plan. In this review, the State DoE did not indicate any problem with Croydon’s plan to send students to approved private schools. Because of these deficiencies, they recommended that the town not vote for this plan. It should be noted that the state DoE gets to make recommendations about about how a town should vote, but according to law, the town makes the final determination.
Despite the DoE’s recommendation, in March 2012 the town of Croydon voted to end the AREA Agreement and to start school choice according to the Withdrawal Plan. However, it was not unanimous – there were some people who were against having private schools included in the school choice program. During one public town hearing, the school board members were asked whether we believe in public schools. The response we all agreed on was this: We were elected by parents and residents in town to make sure all the town’s children get a good education – while it also our responsibility to oversee the running of the public school, we are not otherwise beholden to them. We work for the town, not the school.
It was at this time, in the spring of 2012, that Greysan graduated from Croydon Village school. She started attending the Newport school that fall. It’s too bad she had to go through that experience, but she was ready for school choice when it became available.
According to RSA 195-A:14, we had to wait more than a year after the vote to make any changes. So, the Croydon School District began its school choice program in the 2014-2015 school year. That first year, four students were sent to schools other than Newport, including one to Sunapee public school, two to private Newport Montessori School (Greysan was one of them), and one to private Kimball Union Academy.
In November 2014, the Croydon School Board received a letter from the NH Department of Education requesting how many students Croydon had sent to private schools, and which schools they were attending. The Croydon School Board responded with the information they asked for.
The next time we heard from them was February 2015. Cindy Gallagher, Superintendent of SAU43, which was shared by the Newport and Croydon school districts, received a letter from the NH DoE stating that Croydon must remove all students from private schools. Cindy shared this letter with me (I was chair of the school board at the time), and my immediate response was, “Really? She wants to remove children from school in the middle of the year? This really isn’t about the children, is it.” Ms. Gallagher, with the help of State Senator Jerry Little, was able to convince Virginia Barry, Commissioner of the Department of Education, not to remove students in the middle of the school year. She rescinded her request within two days of the original demand.
I read the letter. I looked up the laws the letter cited, and found it fascinating that the letter cited parts of laws that supported their position as well as other laws that were not relevant to the situation. It is important to note that New Hampshire is a Dillon’s Rule state – two federal court decisions that stated that local governments can only do things that are specifically spelled out by the state government. Therefore, we needed to see a law that allowed us to send students to private schools.
Near the beginning of the letter it says, “Districts may only assign children to public schools.” In support of that statement, they cite RSA 193:1, which explains a parent’s obligations to send their children to school, not a school district’s obligation.
They then say that “even if a parent successfully petitions a district to assign the child to a different school as a result of ‘manifest education hardship,’ the district must make an assignment to a different public school.” In support of this statement, they cite RSA 193:3 and point out that the RSA says that the school board “may order such child to attend another school in the same district…or to attend school in another district.” Here is the entire statement from that RSA, in which they cleverly left out the part of the law they did not like: “…which shall allow a school board, with the recommendation of the superintendent, to take appropriate action including, but not limited to, assignment to a public school in another district when manifest educational hardship is shown.” (emphasis added) What could “but not limited to” mean? [See ‘But not limited to’ box]
Note that RSA 193:3 was the basis of our defense in the injunction that the NH DoE would finally file against us, and where the judge of the Superior Court said that “but not limited to” could not mean private schools because the NH DoE rules say it does not mean that. While there is an RSA that says that state regulations carry the weight of law, it does not say that an administrative rule can change an existing law. Moreover, there is no regulation that says that a district can only send their students to public schools or academies if there is manifest educational hardship.
The letter then says that “the State of New Hampshire has implemented a system to guarantee that all public school children receive an adequate education.” If that were actually the case, then the town of Croydon, a town that otherwise appreciated the tradition of sending their children to Newport, would not have voted to leave the AREA agreement with Newport, because that town would not have been a District in Need of Improvement. There were many children not receiving an adequate education. I wonder what the guarantee actually is. [See Guarantee? box]
However, the reason the DoE made that point about adequacy of education was that they would have no control over private schools because this system is exclusive to the public schools. Of course, private schools guarantee possibly better than an adequate education because they must answer to the parents. They also must go through a rigorous approval process in order to operate in New Hampshire.
The letter then mentions that special education students can be placed in nonpublic schools, citing RSA 192:20a, which contradicts their opening claim that students may only be assigned to public schools. While there is an RSA that specifically allows this type of placement, it is my hope that the legislature will soon realize that every child has special needs and that the one system – in which the NH DoE prescribes following a single set of standards and taking an assessment each year as an accountability measure – cannot possibly meet the needs of all children in New Hampshire.
One RSA they neglected to cite in this letter was this:
RSA 194:22 Contracts With Schools. Any school district may make a contract with an academy, high school or other literary institution located in this or, when distance or transportation facilities make it necessary, in another state, and raise and appropriate money to carry the contract into effect. If the contract is approved by the state board the school with which it is made shall be deemed a high school maintained by the district.
RSA 194:22 sits in the “High School” section of the legislation, so it was clearly intended to refer to high schools. However, a couple of things are a bit odd. If it is only meant for high schools, why does it list that in addition to academy and other literary institutions? Also, doesn’t “other literary institution” mean anything other than academies and high schools? In my reading of this RSA, its plain and ordinary meaning seems to imply that school districts have the power to send their children to schools outside of public high schools and public/private academies. That is, private schools.
It’s interesting to note that border towns like Lyme and Chatham in New Hampshire send their students to private schools in other states using tax dollars. Obviously, NH has absolutely no control over what goes on in schools in other states, so the idea that tax dollars can only be used to pay for schools that the NH DoE has control over has no validity.
Now, some people point out that regular citizens can’t understand the law. They need to take all the RSAs as a package and also pay attention to case law. It’s too hard for anyone to do without proper training. Well, if that were the case, then how can anyone without a lot of money follow the law?
As members of the school board, we kept the people of Croydon informed about what was going on both at school board meetings and at special public hearings. Many in our small town wondered what they were getting themselves into. As frugal New Englanders, they also worried about court costs, being in the limelight, and following the law. We had also received calls and emails from other small towns asking us how we can do this.
After receiving this letter from the NH DoE in February 2015, we hired Chuck Douglas, a former NH Supreme Court Associate Justice, to respond to the letter. The response contained similar views to my commentary above.
In the meantime, Greysan was doing so much better in Newport Montessori, which she had just started in the fall of 2014. According to her mom, they got their daughter back.
We didn’t hear anything new from the NH DoE for quite a while after our response. In May, the Union Leader wrote an article about the Croydon situation, and in particular, wondering what the NH DoE was going to do. That sparked the DoE to contact me and set up a meeting.
We set up a meeting in Concord, and the DoE cancelled it. I then got a phone call from Chuck Douglas telling me that Virginia Barry is trying to set up a meeting with me and that I was being difficult. I found that incredible, since I had been completely available for her suggested meeting times, and she was the one who cancelled our arranged meeting.
We finally set up a half hour phone call in June. Virginia Barry, Cindy Gallagher, and I attended, with Erin McIntyre joining for the second half of the call when a legal question arose. During the first part of the call, I had to explain the situation to Ms. Barry, since she was not fully aware of what was going on. She then asked me what the Croydon school district wanted. I told her that we wanted a rational justification of their demand, that to date, the letters they sent us included parts of RSAs, leaving out the parts that were relevant to us, and including RSAs that had no bearing on our situation. We wanted to see the law or laws which state that our power is limited to sending students only to public school. Ms. Barry said they would put that together and have it sent to us within the next couple of weeks.
Instead of putting things in writing, her office called Chuck Douglas’s office and told them they found a couple more RSAs that justified their position. However, these “new” RSAs were just more of the same. We prepared and sent another response that showed where their reasoning was faulty. It also stated that we would continue with our school choice program.
This time, we didn’t hear anything for the entire summer. The 2015-16 school year started, and without having a clear reason for stopping our practice, the Croydon School Board sent four students to Newport Montessori School, two to Sunapee, and one to Lebanon public school. The new students were sent to NMS for a number of reasons: one was a sibling of Greysan, a mixed-race child was worried about being bullied in the public schools, and one child thought she would be a good fit for their gifted program. Additionally, because of competition created by school choice, Sunapee schools lowered their tuition to match Newport’s tuition so parents would not have to pay the difference.
Two weeks after the 2015-16 school year started, we finally received a cease and desist letter – this time from the Attorney General’s office. I have to say, this letter gave me pause with its important and powerful-looking letterhead, but when I read the letter, it was very similar to the DoE’s letters, but it took a different tact. This letter cited laws about how towns and school districts appropriate money. It claimed that because a law says that school districts must state in detail the sums of money required to support public schools that they are not allowed to pay private schools. It also claimed that the town must send the money they appropriate to the SAU and not to the school district, giving Croydon’s Selectmen 20 days from the date of the letter to redirect the funds. Our Selectmen looked up the law that defines what they are supposed to do. They found that the Attorney General was directing them to do something contrary to that law (they’re supposed to send monies to school districts) and they refused to do it. The school board responded with another letter saying that we are going to continue sending our children to private schools if it is better for them.
In addition to the benefit that each student has experienced as a result of going to private school, there has also been a monetary benefit to the Croydon School District of approximately $5,000 per student.  The tuition cost for Newport Montessori is roughly $8,000 per student per year while the tuition at Newport middle schools is currently approximately $13,000.
In November 2015, the AG filed a temporary and a permanent injunction against the Croydon school district. The hearing for the temporary injunction was also held in November. If you are not familiar with temporary injunctions, they are normally filed in cases like domestic abuse, where if it can be shown that there is imminent danger to a child, he or she can be removed from the environment before a formal trial takes place. The requirements for a temporary injunction are that you have to show imminent danger as well as a likelihood of proving the merits of the case. In our case, we understood what the merits of the case were, but we imagined that the imminent danger was for children as a result of being in the Montessori school.
During the hearing, which took place November 29, it became clear that the imminent danger was that Virginia Barry, the NH Commissioner of Education, could be sued by parents who would claim that their children were not receiving an adequate education in the Montessori school. The judge did not find that argument convincing, and they did not get their preliminary injunction. Croydon students could stay in their chosen private schools, at least for now.
Many people from around the state attended this hearing, including quite a few Croydon residents. After sitting through the hearing, one of the Croydon people who had been outspoken about his fear of court fees and being in the limelight now changed his tune and fully supported the Croydon school choice program. He realized that we need to fight this fight.
As we have pointed out, the town of Croydon was concerned about legal fees. When it became apparent that we would have to go to court, the school board decided to start a GoFundMe to raise the funds. I had received many emails during this entire process from people from around New Hampshire, as well as from other parts of the country, indicating that they would support us in whatever way they could, so I was confident that we could raise all the money and save the town from having to increase their taxes for this legal battle. After all, the outcome would affect more than just Croydon – it would affect the entire state. This was not our goal, of course. We just wanted to do right by our children, and we were not looking to make any kind of statement or be the focus of a cause.
Our lawyers estimated that their legal fees for the injunction hearings would be around $20,000, which they discounted because they believe in this issue and know we are a small town that could profoundly feel the cost. That sounds like a lot of money until you put it into perspective – it would cost more than that to send just two students to Newport schools for one year.
The response to the GoFundMe was astounding. We raised $18,000 in about two weeks and the entire amount in about two months. We had strong support for what we were doing.
The permanent injunction hearing took place in March 2016. Near the beginning of the hearing, the judge asked the Assistant AG, Ann Edwards, what “but not limited to” means. Her response was that she didn’t know, but that it could not possibly mean private schools. This was the crux of what I believed the judge should be making a decision on, and I was pleased to see him question it so early in the proceedings. The AG argued that since Virginia Barry did not personally send us the feedback on our withdrawal plan that said that private schools can be included if they are approved, that we should not have acted on that advice. Basically, that we should not listen to anyone but the politically-appointed bureaucrat in any advice given. [See ‘She can’t bind the state’ box.] They tried to argue that Newport Montessori School does not offer an adequate education, but they were using the term “adequate” to mean “the rules and regulations that define what public schools must do to show they offer the opportunity for an adequate education.” [See ‘Guarantee?’ box.] It has very little to do with the quality of an education. Our defense was resting on the Manifest Educational Hardship (MEH) policy that school districts are required to make.
School districts are required to pass many policies, along with many policies that are recommended. The school districts inherit policies from earlier school boards, and each year I’ve been on the board, our administration has told us that we need to create more policies. They have said they would prepare drafts of the policies that we could then modify to our liking. We have had five superintendents during the six years I’ve been on the board, and no one until this year has actually followed through and worked with us to create policies. We had the experience once where we had to rule on two similar cases – two students were found with knives on a bus. Had we had a policy, both students would have been treated exactly the same. However, the circumstances were different enough that we treated the students differently. Since then, we have questioned the wisdom of having blanket policies. The laws requiring the policies state clearly enough what needs to happen; policies generally just take their language from the laws. We have often said that Croydon’s policy is to have no policies, and we hope that parents will come to us even when existing policies do not treat children fairly.
The MEH policy in question here similarly has a law that spells out the process. We did not follow that process because no superintendent or state education official told us that this would be a good way to provide school choice to students. Had we known about it, we would have immediately done it.
While the permanent injunction hearing was held in March, a bill was submitted to the legislature in February to clarify the law. HB 1637 clarified the contradictory laws, stating that school districts can choose private schools as one of their options. The intent of the bill was not “Let’s let Croydon do something,” but “What Croydon is doing is already legal.” It was introduced by a House member. I testified to the House Education Committee in February and to the Senate Education Committee in April. The bill was amended a couple of times, and on June 1 a Committee of Conference was held, made up of members of both the House and the Senate to decide whether it should be considered on the floor. I spoke with many people on all these committees to help them understand what the issues were. A good version of the bill finally passed both the House and the Senate on June 8, only to be vetoed by the then Democratic governor later that month. In a statement about why she vetoed this bill, Governor Maggie Hassan noted that since it did not exclude religious schools from the choices school districts could make that it was unconstitutional. Of course, Article 83 of the NH Constitution states that money cannot be raised to send children to religious schools. Perhaps she didn’t realize that the Constitution trumps laws, and not the other way around. Had this bill passed into law, we would not have needed the permanent injunction decision because the laws would be clearer, but that’s not the way this story goes.
While we were waiting for the judge to make a decision about the permanent injunction, in addition to HB 1637 going through the legislature, the school year ended, and we had a tuition bill from the Newport Montessori School. Since we were rightfully sending our students to private schools, we went ahead and paid the bill on July 25. This bill paid for the students’ tuition for half the school year.
Rumor had it that the judge would not make a decision until November. The AG’s office filed another injunction on July 27 to force the judge to make a decision. It worked.
On July 29, the judge finally made a decision, nearly five months after the hearing. To our surprise, he ruled for the permanent injunction and stated that we were not to use tax dollars to pay for private school tuition. He also said that “but not limited to” could not mean private schools because the NH DoE rules say it does not mean that. Since we had already paid our NMS tuition bill, we requested a clarification of his ruling on August 8. The AG filed for an emergency hearing, which took place a few days later. At this hearing, they contended that we were gaming the system, that we should have known that the judge would rule against us, and that we should have acted guilty until proven innocent. The judge ruled in our favor; however, we were not to pay the tuition for the second half of the year.
Soon after the judge’s decision, we filed an appeal to the NH Supreme Court. The money we had raised for the injunction hearings had run out, and it was time to start the GoFundMe again. The cost for an appeal was estimated to run about $25,000 or even more. At the date of this writing, we have raised about $2,500 from locals, but we also have the support of EdChoice, a national organization that has been instrumental in starting school choice programs around the country.
Granite Institute, a NH non-profit think tank wanted to help Croydon in some way. They approached me about giving talks around the state about Croydon’s situation. They had started researching “town tuitioning”, a traditional New England approach to sending students to schools outside their districts when their schools do not provide those grades, which is the same thing as the school choice program that Croydon instituted. I joined the research team to continue the research into the history of town tuitioning and how it started getting chipped away.
Tuitioning in NH was formally established in 1901 for any district that did not offer all K-12 grades. Small New Hampshire towns could use tuitioning to send students to private schools, schools in other states, and public academies. Of all the means of providing all grade levels for small towns, it is the oldest, simplest, and most easily tailored to the needs of students, parents, and towns. While a 1949 change to one statute limited the choice to public schools and public academies, other statutes grant school districts the power to make contracts with “other literary institutions.” That is, the statutes are inconsistent with respect to this issue. Border towns in New Hampshire that tuition students out of state still benefit from choice in Vermont and Maine, being able to send their students to private schools in those states. But when other New Hampshire towns, like Croydon, seek to do the same thing with private schools in New Hampshire, suddenly the NHDOE sees a problem.
We published a report that tells the compelling story. The report clarifies the school policies of small districts that use AREA agreements, Cooperative districts, and other tuition agreement to send students to school. The goal of the report is to help parents, lawmakers, and other stakeholders become better informed about their options. Of the 180 NH districts, there are at least 50 such districts (about 28 percent of the total) in New Hampshire do not have schools with the full range of grades in their districts.
When we finished the report, I traveled around the state to talk to groups about Croydon’s story and what we learned about town tuitioning. These groups were very supportive of town tuitioning for small towns. Granite Institute additionally supported the creation of a short video that summarizes Croydon’s story.
The 2016-17 school year started, and the Croydon School District sent six students to Newport Montessori School, nine to Sunapee, and one to Lebanon public schools. The sixth NMS student is the also-gifted sibling of the first gifted student who was sent there. Greysan will be graduating NMS this year.
The Newport Montessori tuition for the second half of the year comes due February 1. Since everything is still up in the air (appeal, legislative bill), and we know that it is not good for students to be moved around, parents of the children decided to raise money to pay for the tuition for the remainder of the year. The parents contributed what they could, and some very generous people donated the rest of the $24,000 that was needed. We are grateful that Greysan and the other children will be able to finish the year at the Montessori school while things get decided legally.
In November 2016, Chris Sununu was elected Governor, the first Republican governor in 12 years. Governor Sununu came to a school district public hearing in Croydon to assure the town that he will sign a school choice bill into law. A bill about town tuitioning (as it is now called), which uses the text from HB 1637 that passed the House and Senate during the last session, has been submitted. If that bill passes into law, we will not have to finish the appeal to the Supreme Court. We now await the new legislative session.
It is important to note that if this law passes, or we win our appeal to the NH Supreme Court, that this issue will affect more than just the small town of Croydon. It will affect all the small towns in New Hampshire.
 Croydon Village School expanded to 4th grade in 2015.
 Authorized Regional Enrollment Area, governed by Chapter 195A of the New Hampshire Statutes.
 The state reimburses up to $3500 per student in “adequacy funds”, which this savings does not include. We do not include it because we believe that adequacy funds should be applied to any school that tax money supports.
Jody Underwood, Ph.D., has served on the Croydon School Board since 2010. She was the chair for four years, until 2016 when she became the school board Secretary and School Choice Liaison. During that time, she completed the withdrawal from an AREA agreement and put into place a formal tuition agreement with the neighboring Newport school district, and met with superintendents and school board members from districts and private schools in around the state about accepting Croydon students to their schools through informal tuition agreements. She has been the key contact person for the legal battle Croydon is in and has also worked with state legislators to clarify the law about school choice.
Dr. Underwood received her B.S. in computer science from Hofstra University, her M.S. in computer science with a focus on artificial intelligence from Rutgers University, and her Ph.D. in Education from the Technion-Israel Institute of Technology. She has conducted research and development around the use of technology for learning and assessment since 1987.