Bar Journal - Fall 2005
Appeal Rights in Teacher Non-Renewal Cases: Does Hopkinton Provide Any Guidance?
By: Sarah Fox
Can a school board, which by statute often serves as a decision-maker in determining to renew or not renew a teacher’s contract, subsequently provide a fair avenue of appeal to a teacher dissatisfied with a non-renewal decision? On September 9, 2004, in Appeal of Hopkinton School District, the New Hampshire Supreme Court affirmatively answered that, absent a showing of actual bias or prejudice, a school board may conduct a non-renewal hearing. Shortly before the Court issued this decision, the New Hampshire Legislature amended the teacher non-renewal statute provisions under which Hopkinton was decided. The question then becomes, considering these legislative changes, is Hopkinton of any precedential value or guidance? This article will analyze the appeal standard that applied prior to and as a result of the Hopkinton decision, the legislative changes to the teacher non-renewal statute, and what standard will now be applied in appeals regarding non-renewal decisions. This analysis reveals that the “actual bias” standard used in Hopkinton has been replaced with a broader but higher standard of whether the decision was clearly erroneous.
In Appeal of Hopkinton School District, the court held that to overturn a school board’s non-renewal decision, the State Board of Education must find the that school board showed actual bias in making the employment decision.1 The law in effect at the time the non-renewal appeal was presented to the hearing officer and State Board of Education did not set forth a clear standard of review.
Appeal of Hopkinton School District involved three different levels of appeal for this teacher non-renewal case; at the school board level, the State Board of Education and finally the Supreme Court. The facts in Hopkinton are as follows: Mary Beth Stevens was hired as the principal at Maple Street School in Hopkinton in 1996.2 In the 1998/1999 school year, although Stevens received a generally favorable evaluation; Superintendent Richard Ayers noted that he needed to create an action plan to address his concerns with Stevens’ communication skills and lack of a fully developed curriculum.3 Ayers provided Stevens with an action plan for the 2000-2001 school year. Meanwhile, the Hopkinton School Board’s evaluation of Ayers also indicated concerns about the leadership at the Maple Street School.4
In Stevens’ February 2001 evaluation, Ayers again noted curriculum and communication problems.5 Ayers presented Stevens with another action plan on April 13, 2001 in a meeting attended by the School Board Chair and Peggy McAllister, the Executive Director of the New Hampshire Association of Principals.6 Ayers told Stevens that full implementation of the plan would be necessary for her to succeed as the principal of the school.7 In the ensuing 2001-2002 school year, Ayers’ concerns with Stevens’ leadership continued, and, on March 30, 2002, Ayers informed Stevens that her contract would not be renewed primarily because she did not complete the action plan as required.8
Pursuant to RSA 189:14-a, Stevens petitioned for a letter of reasons a and a hearing before the Hopkinton School Board to explain the non-renewal.9 After a public board hearing held at Stevens’ request, the Hopkinton School Board affirmed Ayer’s recommendation for non-renewal on May 16, 2002.10 Stevens then appealed to the State Board of Education claiming she was denied a fair hearing.11 She claimed that the Hopkinton School Board was biased because it had an alleged role in the design and implementation of her action plan and that the school board was pressuring Ayers to “get rid of [her].”12
The State Board of Education appointed a hearing officer to hear the case and determine what standard of bias should be applied, as well as to make a recommendation as to whether there was bias in this case.13 The hearing officer heard testimony from several witnesses including Ayers, Stevens, and Peggy McAllister, who attended the April 13, 2001 meeting.14 The hearing officer found that, in the totality of the circumstances, there was “sufficient risk of unfairness” which impacted the Hopkinton School Board’s non-renewal decision, even though the school board attempted to appear impartial.15 The State Board of Education sustained the hearing officer’s findings and conclusions that there was “bias and/or appearance of bias” and subsequently held that Stevens was entitled to a new hearing before an impartial tribunal.16 The Hopkinton School Board then appealed to the Supreme Court.17
The Hopkinton Court stated that it would not overturn the State Board of Education’s decision unless there was an error of law proven by a clear preponderance of the evidence that rendered the decision unjust or unreasonable.18 The State Board’s finding of facts were prima facie lawful and reasonable, and the burden of demonstrating that the Board’s decision was clearly unjust or unreasonable was with the party seeking to set aside the Board’s order.19
In reaching this conclusion, the Court applied Farrelly v. Timberlane Regional School District which held that due process was not denied to teachers because of the school board’s prior involvement unless there was no showing of actual bias or prejudice.20 If there is no evidence of personal animosity, personal stake or financial gain, prior board involvement in events leading to a termination will not defeat the “presumption of honesty and integrity of board members in conducting the hearing and rendering a decision.”21 In determining that a school board may hold non-renewal hearings absent a showing of actual bias or prejudice, the Court stated that their holding is in keeping with the statutory framework of RSA 189:14-a, which places the responsibility of conducting the hearings on the local school board and the appeals of school board decisions with the State Board of Education.22
On appeal, the Hopkinton School Board argued that the standard of review to overturn the local school board’s non-renewal decision at the State Board of Education level was whether there was actual bias on the part of the school board.23 In remanding the case to the State Board of Education, the Court provided guidance for determining whether there was actual bias in the Hopkinton School Board decision that would have prevented Stevens from receiving a fair hearing.24 The Court reasoned that the State Board must find there was more prior involvement of the school board than a member’s attendance at a meeting, as was the case with the Hopkinton School Board member attending the April 12, 2001 meeting.25 Even if the school board made a decision to dismiss a teacher, that decision would not prevent the school board from adequately providing due process in a later hearing.26
The Court explained that the State Board of Education’s role in deciding appeals was to examine the written record of the case, and determine whether to accept, reject or modify the hearing officer’s finding of fact and conclusions of law.27 The hearing officer acknowledged there were inconsistent statements by the witnesses in this case, but made no factual findings about the testimony.28 When the State Board explained why they were affirming the hearing officer’s findings and conclusions, the board emphasized the testimony of Peggy McAllister and the inconsistencies of witness testimony.29 Because the State Board inappropriately focused on evidence that the hearing officer did not use in writing her recommendation to the Board, the State Board overstepped its review authority because it made factual determinations when the credibility of witnesses was essential to the disposition of the case.30 The Court invited the State Board to consider the witness’ testimony as part of the written record but not for the purposes of determining a witness’ credibility.31
The guidance would have been helpful for other administrative hearing panels that need to determine what evidence the appeal boards may use to make their decisions, as well as the actual bias standard that should be applied. However, due to the recent legislative changes to RSA 189:14-a, the State Board will no longer need to apply the actual bias standard to overturn a local school board’s non-renewal decision. The law now mandates that the State Board uphold a school board’s non-renewal decision on appeal unless the decision was clearly erroneous.32 This standard is a broader but higher threshold than the “actual bias” standard used in Hopkinton.
To begin the process of non-renewal, RSA 189:14-a (III) outlines a three-step test the superintendent must follow to recommend non-renomination of a teacher due to unsatisfactory performance. First, the superintendent must demonstrate by a preponderance of the evidence, that the teacher received written notice of the poor evaluation and that the consequences of failing to remedy the problems in the evaluation may lead to a non-renewal recommendation to the board.33 Second, the superintendent must show that the teacher was given a “reasonable opportunity to correct” the unsatisfactory performance.34 Finally, the superintendent must show that the teacher failed to correct the problem.35 Once the superintendent presents evidence to the board, the board’s role then shifts from policymakers to adjudicators.36 Should the teacher request a hearing about the non-renewal, the school board has broad latitude to analyze the evidence because as the adjudicators, they make both the findings of fact and of law.37 If the teacher requests an appeal to the State Board of Education, the appeal is the exclusive remedy for the teacher in the non-renewal decision.38
Previously, when school boards made non-renewal decisions based on the evidence presented at the hearing, the school board determined whether the superintendent, by a preponderance of the evidence, followed the statute and that the teacher’s performance remained unsatisfactory. The State Board, upon reviewing the school board’s decision could consider many factors in the non-renewal process, how the notice was provided, how much time the teacher was given to make the corrections, and any communications with the school board and the superintendent. Under Hopkinton, unless the teacher could show that there was actual bias by the members of the school board, the State Board should uphold the non-renewal decision. If the teacher could show that there was actual bias on the part of the school board, the State Board could order a new appeal hearing before an impartial hearing panel.
The legislative history of the statute shows that legislators adopted the “clearly erroneous” standard after much debate and finally settled upon Black’s Law Dictionary’s39 definition of the standard as:
The standard of review that an appellate court usually applies in judging a trial court’s treatment of factual issues. Under this standard, a judgment will be upheld unless the appellate court is left with the firm conviction that an error has been committed.40
According to the testimony of Sen. Jane O’Hearn, the arbitrary and capricious standard was not recommended because of recent a court case that “just left a bad feeling” and an attorney recommended the clearly erroneous standard as more “middle of the road.”41 A task force commissioned by then Governor Jeanne Shaheen was also unable to resolve the standard of review issue to the satisfaction of its members.42 The “clearly erroneous standard” now in place substantially limits the State Board’s discretion to overturn a school board’s non-renewal decision.
For example, if a teacher tries to demonstrate to the State Board that the local school board had actual bias in its non-renewal decision and therefore was denied a fair hearing, the teacher would also have to show that because of the bias, the school board’s ultimate decision was clearly erroneous. The school board would merely need to show that the board and the superintendent correctly followed the three-step non-renewal test in RSA 189:14-a by providing the teacher all of the notices, the time to remedy, and an evaluation. The State Board hearing of an appeal from a school board’s non-renewal decision is limited by the evidentiary record created at the school board hearing unless other evidence becomes available that was not previously discovered and the evidence materially affects the outcome of the school board hearing.43 Therefore, the State Board would have to affirm the school board’s decision, because, as a matter of law, the decision was not clearly erroneous. It is possible that it could be considered irrelevant whether or not a school board demonstrated actual bias against the teacher as long as the school board had the necessary documentation to show that it complied with the law.
If Hopkinton were to be decided under the new statute, it is likely the State Board’s decision would have sided with the Hopkinton School Board rather than Stevens. The State Board’s review would have been limited to only the evidence presented at the school board hearing which indicated that Superintendent Ayers followed the three-step test in making his non-renewal recommendation and that the school board accepted Ayer’s recommendation. Even if some members of the school board showed some bias against Stevens, Stevens would have had to demonstrate that the school board’s non-renewal decision itself was clearly erroneous because, as the Hopkinton Court stated, the school board is presumed to make fair and just decisions.
Another point to consider in the non-renewal process is the final sentence of RSA 189:14-a(III) where the legislature explicitly does not require the superintendent or school board to provide assistance to help the teacher to correct problems noted in the evaluation and that might result in non-renomination.44 This means that a superintendent could give an unsatisfactory evaluation to a teacher for poor classroom management and inform the teacher that if the classroom management did not improve, the teacher would be fired. If the teacher was unable to improve classroom management because s/he was not provided any guidance or instruction about what specifically was unsatisfactory, and the teacher did not understand how the superintendent wanted the problem corrected, the teacher could be fired as long as the superintendent can show the three steps in the statute were appropriately followed45
The Court in Hopkinton held that there must be actual bias on the part of the school board to prevent a teacher from receiving a fair due process hearing - the legislature stated that a school board decision can only be overturned if the non-renewal decision was clearly erroneous.46 The State Board of Education should presume that a school board making a non-renewal decision is “of conscience and capable of reaching a just and fair result.”47
The reality of school boards and local politics however, is not reflected in the “clearly erroneous” standard. If a teacher wishes to appeal to the State Board, they must have a better way to defend themselves against a superintendent with whom the teacher has a personality conflict or a board that has possible ulterior motives for making its decision. The “clearly erroneous” review standard is an extremely high threshold for teachers to meet to prevail in reversing a school board’s non-renewal decision at the State Board appeal level. With this high standard in mind, it is not advisable to take this type of case before the State Board of Education. With the amount of discussion and debate surrounding the choice of the “clearly erroneous” standard, it is likely that the issue will resurface, to be revisited by the legislature and analyzed by the Supreme Court.
1. Appeal of Hopkinton School District, 862 A.2d 45, 46 (NH 2004).
9. Id. at 47
14. Id. at 49.
16. Id. at 47.
18. Id. (citing Appeal of Morrill, 145 N.H. 692, 695 (2001)).
20. Id. (citing Farrelly v. Timberlane Regional School Dist., 114 N.H. 560, 565 (1974)).
21. Id. (citing Spradlin v. Bd. Of Trustees of Pascagoula Sch. Dist., 515 So.2d 893, 898 (Miss. 1987)).
23. Id.at 48.
24. Id. at 47.
26. Id.(citing Farrelly, 114 N.H. at 565, Riter v. Woonsocket Sch. Dist. No. 55-4, 504 N.W.2d 572, 575-76 (S.D. 1993).
27. Id. at 48.
30. Id. at 49.
32. N.H. Rev. Stat. Ann. 189:14-b(Supp. 2004).
33. N.H. Rev. Stat. Ann. 189:14-a (III) (Supp. 2004).
36. Id.; N.H. Rev. Stat. Ann.186:13 (Supp. 2004)
37. N.H. Admin. R. Ann., Dept. Educ. 216.02 (2004).
38. Supra n. 33.
39. N.H. Sen. Educ. Comm., SB 76 relative to the process for non-renewal of teacher contracts, 157th Gen. Ct. 2003, 15 -16 (February 19, 2003)
40. Black’s Law Dictionary (8th ed. 2004)
41. Supra n. 33.
42. Supra n. 40.
43. N.H. Rev. Stat. Ann. 186:8 (Supp. 2004).
46. Supra n. 1 at 48.
47. Id. (citing Petition of Grimm, 138 N.H. 42, 52 (1993)).
Sarah Fox, a 2005 graduate of Franklin Pierce Law Center has a J.D. and a Master of Education Law (MEL) degree. She has been working as an Education Consultant at the New Hampshire Department of Education.