NHSBA v. Epping Superintendent (2 different views of the same dicision)

Thought you might like to see the two different interpretaions of the same decision placed on the websites of the NHSBA and the Epping SAU #14 websites respectively.

Tom Sutliffe
ERGP

NH Supreme Court Rules on Epping School Board Case

On October 6, 2006, the New Hampshire Supreme Court issued an order in Epping Residents for Principled Government, Inc. v. Epping School Board. The issue was whether the Epping School Board used "unwarranted advocacy" in support of certain ballot issues and warrant articles, in violation of the Constitutional rights of certain taxpayers who held opposing viewpoints.

The New Hampshire Supreme Court upheld the School Board's actions. However, the order was not a clearcut victory for New Hampshire school boards, as the order raises more questions than it resolved and does not provide definitive guidance for the difference between appropriate and inappropriate advocacy.

The Court's decision was based largely on procedural grounds, as opposed to being decided on the merits of the law. The Court ruled that the taxpayers did not properly preserve certain of their arguments for the Court to review. The Court may have been looking for a better case upon which to make some significant rulings.

It appears that some statements by a School Board are clearly acceptable, such as "we urge you to support the budget because we need it to fund our program" and "we need a new high school and ask you for your support". These kinds of "advocacy" appear to be tolerable, especially if they appear in the School District Annual Report. However, some Epping School Board practices were, in the Court's words, "troubling."

Specifically, the Court had reservations about the Board's direct attacks upon opponents of the budget or new school and using students as "mules" or couriers to send "political" messages home.

Because the decision was unclear, the legality of some board practices is still unsettled, such as using public money for mass mailings advocating a particular position. There probably would not be anything wrong with a mass mailing that conveys information on important issues, provided that it is consistent with the acceptable language. Also, it appears to be unlikely that the Board would be required to give dissenting viewpoints equal space and time in the School District Annual Report, or pay for an opposing mass mailing. Until the law is further clarified, NHSBA urges school boards to proceed with caution when "advocating" for particular political ballot issues and warrant articles. NHSBA Policy KDCA recommends that school districts do not use student as couriers for information that advocates a particular position on bond issues, political matters, labor relations issues or District budgets. NHSBA also recommends that any mass mailings contain purely "neutral" information related to the issue at hand, as opposed to including potentially coercive statements from the school board.

NHSBA

NH SUPREME COURT AFFIRMS DECISION OF SUPERIOR COURT IN ERPG VS EPPING SCHOOL BOARD

On October 6, 2006 the NH Supreme Court issued an order regarding the appeal of the Epping Residents for Principled Government, Inc. versus the Epping School Board. The Supreme Court affirmed the trial court's determination. In summary the Superior Court:

1. Denied ERPG's request to declare the school district annual report as unwarranted advocacy and an incorrect expenditure of public funds in violation of the State and Federal Constitutions.

2. Denied ERPG's request to enjoin all officials as to the unwarranted advocacy in the future and to contain a statement in the next two annual reports about the constitutional prohibition against using public monies for the purpose of advocacy.

3. Ruled that the statements made by public officials were made on behalf of public purpose, not private statements.

4. Ruled that the district did not inappropriately or excessively use public funds for the annual report.

5. Ruled that the district did not violate ERPG's rights under the First and Fourteenth Amendments of the Federal Constitution or the Equal Protection under the State Constitution (to have access for presenting an opposing view).

Barbara Munsey, Epping Superintendent