Appeal of Rye School District

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

State Board of Education
No. 2019-0397

APPEAL OF RYE SCHOOL DISTRICT
(New Hampshire State Board of Education)

Argued: July 1, 2020
Opinion Issued: December 2, 2020

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

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

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

HICKS, J. The Rye School District (District) appeals a decision of the
New Hampshire State Board of Education (State Board) overturning the
decision of the Rye School Board (School Board) denying a request by C.B. and
E.B. (Parents) to reassign their child (Student) to a school in another district
pursuant to RSA 193:3 (2018) (amended 2020). We affirm.
 The following background facts are taken from the hearing officer’s
recommendation to the State Board, which, in turn, largely summarized the
presentations of both parties at the hearing. According to the testimony of
Student’s mother (Mother), Student has a growth hormone deficiency that
hinders physical growth and causes Student to fall behind academically and
socially. Due to Student’s small size, she is often picked up and carried by
other pupils. In third grade, Student was pinched and poked by other pupils
and was allegedly assaulted by one of them. Parents met with the Rye
Elementary School principal, but she declined to file a bullying report. The
school responded to this incident and a subsequent incident by promising to
keep Student and the other child apart.

Although Mother indicated that fourth grade apparently went relatively
well, at the start of fifth grade, Mother requested reassignment of Student,
believing that the atmosphere of the middle school program was too much for
Student and that Student needed to take things more slowly. She also alleged
that the principal did not understand Student’s 504 plan and was not aware of
Student’s attention deficit hyperactivity disorder (ADHD) and anxiety issues.
See 29 U.S.C. § 794 (2018) (codifying Section 504 of the Rehabilitation Act of
1973, which prohibits any program receiving federal funds from excluding or
discriminating against an “otherwise qualified individual with a disability”).
Mother requested an Individual Education Program (IEP) meeting, but the
school believed that such a meeting was not necessary because the 504 plan
could meet Student’s needs. During that academic year, Student was again
assaulted by a peer, had issues with anxiety, and was not gaining weight.

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

The hearing officer, however, found that there were “continuing issues at
the new school after the reassignment took place.” The hearing officer also
found that Mother had been aware of Rye Elementary School’s bullying policy
but neither filed a bullying complaint nor addressed the issue with the school
superintendent until after Parents had decided to place Student in a different
school.

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

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

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

The District moved for a rehearing on a number of grounds, including
that the State Board violated its rules by failing to record the hearing before it.
Acknowledging that it failed to record its proceedings as required by RSA 541-
A:31, VII (2007) and New Hampshire Administrative Rule Ed 212.02(f) (Rule
212.02(f)), the State Board granted the motion for rehearing “for the limited
purpose of rehearing oral arguments” and, in light of that decision, declined to
address the other grounds in the District’s motion at that time. After the
rehearing, the State Board issued its final decision, reaffirming its rejection of
the hearing officer’s recommendation and its decision to overturn the School
Board’s denial of reassignment.

The District filed an appeal from the administrative agency, see Sup. Ct.
R. 10, to this court arguing that the State Board erred by: (1) substituting its
judgment for that of the hearing officer on matters of witness credibility; (2)
rejecting the hearing officer’s findings and reversing the School Board’s
decision where the State Board’s “conclusions are not supported by competent
evidence in the record”; (3) denying the District’s “request for rehearing after
reviewing a partial transcript that omitted most of the testimony of the . . .
District’s witnesses”; (4) failing to follow its own rules; (5) failing to apply the
correct standard for manifest educational hardship; and (6) “violat[ing] RSA
541-A:35 by failing to rule upon each of the . . . District’s proposed Findings of
Fact.” (Bolding omitted.) Before reaching these arguments, however, we
consider a preliminary issue raised by the State Board; specifically, the State
Board “seeks clarification as to whether a party can appeal, under RSA
[chapter] 541, a [State] Board finding of manifest educational hardship under
RSA 193:3.”

I. Appellate Review

“Appeals from administrative proceedings may be taken under RSA
chapter 541 only when so authorized by law.” Petition of Hoyt, 143 N.H. 533,
534 (1999) (quotation and brackets omitted); see RSA 541:2 (2007).

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

Petition of Hoyt, 143 N.H. at 534 (quotation and brackets omitted).

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

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

We decline to address these arguments, because we are not writing on a
clean slate with respect to this issue. In Appeal of Morrill, 145 N.H. 692, 695
(2001), we declined to address the argument that RSA 21-N:11, III provided a
jurisdictional basis for an appeal of the State Board’s decision regarding a
teacher’s suspension under RSA 189:31. See RSA 189:31 (2018). There, we
assumed without deciding that the action was properly before the court under

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RSA chapter 541, “[g]iven the State’s apparent acquiescence that the board’s
decision is appealable under RSA chapter 541.” Appeal of Morrill, 145 N.H. at
695. Subsequently, without elaboration, we found jurisdiction under RSA 21-
N:11, III for an RSA chapter 541 appeal in Appeal of Farmington School
District, 168 N.H. 726, 730 (2016), and Appeal of Dunbarton School District,
169 N.H. 50, 54 (2016). Because the State Board has not asked us to
reexamine or overrule Appeal of Farmington School District and Appeal of
Dunbarton School District, stare decisis impels us to follow them. See Reid v.
N.H. Attorney Gen., 169 N.H. 509, 522 (2016) (declining to reconsider prior
precedent when neither party had asked us to do so). Accordingly, we answer
the State Board’s request for clarification by holding, in accordance with
Appeal of Farmington School District and Appeal of Dunbarton School District,
that a State Board finding of manifest educational hardship under RSA 193:3
is appealable under RSA chapter 541.

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

II. Due Process Violations

The District argues that the State Board violated its due process rights in
a number of respects related to the State Board’s rejection of the hearing
officer’s recommendation. For purposes of this appeal, we will assume, without
deciding, that the District may bring its due process challenges against the
State Board. See Appeal of Town of Bethlehem, 154 N.H. 314, 328 (2006)
(citing conflicting case law and assuming, without deciding, that town could
raise due process challenge against a state agency). We first address the
District’s claims under the State Constitution and rely upon federal law only to
aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

We have held that an administrative agency’s rejection or modification of
a hearing officer’s decision does not violate due process as long as the agency
“adequately explains the grounds for its decision as we . . . articulated in”
Appeal of Dell. Appeal of Dell, 140 N.H. 484, 495 (1995). In Appeal of Dell, we
explained:

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

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

We hold, however, that where an administrative agency
rejects an advisory decision, it must adequately explain the
grounds for such different decision, and fully and particularly set
out the agency’s decision based upon an independent examination
of the record.

Id. at 493 (citations omitted). We also noted that where “the responsibility for
hearing the evidence and making factual determinations, including credibility
assessments, was delegated by the board to a hearing officer, the board’s role is
limited to reviewing the record.” Id. at 496. Thus, notwithstanding an
administrative agency’s general authority, as outlined in Appeal of Dell, to
reject a hearing officer’s findings of fact, the agency’s board may not “make
factual determinations that depend upon the credibility of the witnesses’
statements.” Appeal of Hopkinton Sch. Dist., 151 N.H. 478, 482 (2004)
(emphasis added). In evaluating opinion evidence contained in the record,
however, an agency’s board may “properly resolve[] evidentiary conflicts by
using its own expertise and technical judgment.” Appeal of Dell, 140 N.H. at
496. Furthermore, “before we will evaluate a due process claim, [the party
making the claim] must show actual prejudice.” Appeal of Omega Entm’t, 156
N.H. 282, 287 (2007).

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

The witnesses’ testimony essentially summarized the factual
information documented in the records and provided opinions as
to whether attendance at the Rye School had a detrimental or
negative effect on Student. . . . [T]he evidentiary hearing did not
involve conflicting testimony between witnesses about events, and
neither the Hearing Officer nor the [State] Board made findings
regarding the credibility of witnesses in reaching their decisions.

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

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

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

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

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

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

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

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We conclude that these explanations are adequate under the standard in
Appeal of Dell. See Appeal of Dell, 140 N.H. at 493.

To the extent the District asserts that the State Board rejected the
hearing officer’s factual findings, we disagree. The State Board “accept[ed] the
Hearing Officer’s Report and den[ied] the Hearing Officer’s Recommendation[].”
We interpret this decision as accepting the hearing officer’s factual findings but
disagreeing with the hearing officer’s interpretation of those facts and his
ultimate conclusions based thereon. See Guy v. Town of Temple, 157 N.H.
642, 649 (2008) (“[T]he interpretation of a tribunal’s order presents a question
of law, which we review de novo.”); cf. Appeal of Farmington Sch. Dist., 168
N.H. at 731 (explaining that the State Board’s conclusion, contrary to that
reached by the local board, as to whether employee had been insubordinate,
“was not a de novo factual determination,” but “[r]ather, the state board
accepted the local board’s account of what [employee] did[,] . . . but found
clearly erroneous the local board’s conclusion that [employee’s] actions were
inconsistent with district policy”).

The District argues that the State Board’s conclusions “directly
contradict[]” a number of specific findings of fact made by the hearing officer.
Again, however, any points of disagreement were not as to the underlying facts,
but, rather, were to the ultimate conclusions as to whether Student’s
circumstances were unique and whether attendance at Rye Elementary School
had a negative or detrimental effect on Student. Cf. Appeal of Farmington Sch.
Dist., 168 N.H. at 731. As one State Board member stated:

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

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

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

To prevail on its due process claim, the District must show that the
deficiencies in the October 2018 hearing transcript so hindered the State
Board’s ability to provide meaningful review that actual prejudice to the
District resulted. Cf. State v. Marshall, 162 N.H. 657, 672 (2011) (noting, in
criminal context, that “in order to obtain a new trial, a defendant must show
specific prejudice to his appeal resulting from the incompleteness of the record”
(quotation omitted)); Oroh v. Holder, 561 F.3d 62, 65 (1st Cir. 2009) (noting, in
immigration context, that “to succeed on a claim of inadequate transcription,
[the petitioner] must show specific prejudice to his ability to perfect an appeal
sufficient to rise to the level of a due process violation,” or, “[m]ore specifically,
he must show at a bare minimum that the gaps relate to matters material to
his case and that they materially affect his ability to obtain meaningful review”
(quotations and citations omitted)).

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

We conclude that the District has failed to demonstrate a violation of due
process under the State Constitution. The Federal Constitution offers the
District no greater protection than does the State Constitution under these
circumstances. See Appeal of Dell, 140 N.H. at 493; Cousin v. Office of Thrift
Supervision, 73 F.3d 1242, 1244, 1250 (2d Cir. 1996) (concluding that Acting
Director of the Office of Thrift Supervision’s “absolute discretion to accept or
reject the [Administrative Law Judge’s] recommended findings of fact and
rulings of law when arriving at his Final Order” does not violate due process);
Appeal of Omega Entm’t, 156 N.H. at 287; Oroh v. Holder, 561 F.3d at 65-66.
Accordingly, we reach the same result under the Federal Constitution as we do
under the State Constitution.

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 III. Violation of Rule 212.02(b)

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

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

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

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

IV. Manifest Educational Hardship

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

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

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

V. Violation of RSA 541-A:35

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

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

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

Affirmed.

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

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