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Subpoena proposal puts NH Department of Education investigations in the spotlight

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Critics of the proposal warned that it would give the agency excessive power during an era of increasing hostility towards educators.

An effort to expand the Department of Education’s investigative power stalled at the State House this week, but the debate over that proposal shed new light on how the agency is wielding its oversight power when responding to complaints against educators.

After a lengthy discussion at its most recent meeting, the House Judiciary Committee voted against a Republican-sponsored bill that would have given the education commissioner the power to issue a subpoena if they believe a teacher has violated the code of conduct.

Critics said the proposal lacked criteria for when the agency could issue a subpoena and that it complicated an already murky legal process for fielding complaints from parents on how teachers handle issues of race and gender. But supporters — including the education department’s lead investigator — said the agency needs more power to address growing “pushback” from some school districts during teacher investigations.

“This request has nothing to do with political agenda or me carrying water for any commissioner,” said Richard Farrell, who has worked on investigations for the education department for 10 years. “I need these tools to complete my mission.”

The debate over the education department’s subpoena power comes as the state is facing greater scrutiny over how it polices what goes on in the classroom. Last year, Education Commissioner Frank Edelblut came under criticism for publicizing complaints against teachers on classroom materials involving race, racism, gender and socialism. The state is also facing a lawsuit over how it enforces a 2021 law that restricts how teachers can talk about racism and other forms of oppression.

As it stands, the education department fields most complaints against educators but turns to the New Hampshire Attorney General’s office for subpoena power, if necessary.

Complaints against teachers for violating the 2021 law that restricts classroom discussions on race and other issues are supposed to go directly to the Commission for Human Rights, rather than the Department of Education. However, Assistant Attorney General Sean Locke told NHPR his office is developing a procedure with the Department of Education to review allegations on this issue directly from the Department of Education. Locke declined to elaborate further, noting that the law in question is the subject of current litigation and legislation.

In testimony to the House Judiciary Committee, Farrell said 90% of the complaints the Department of Education receives alleging teacher misconduct end up being unfounded. He said the agency suspends or revokes the licenses of about 10 educators a year.

The most recent revocations and suspensions disclosed by the state reference a range of allegations and violations, including those involving inappropriate communication with students or sexual misconduct.

Farrell said subpoena power would allow him to access information that, in some cases, districts are reluctant to give. He said most districts are cooperative but he is getting increasing “pushback from certain stakeholders.”

“Many times I've been denied access to reports, statements, witness information, names, ages, local disciplinary records, investigative findings, and other crucial bits of evidence that would have assisted in protecting students, exonerating educators [who are] falsely accused, and removing bad apples from our classrooms,” he told legislators.

NEA-NH President Megan Tuttle, whose union represents about 17,000 local educators and staff, said she was not aware of any information the agency had requested during an official investigation that it had not received. She warned lawmakers that giving the education commissioner and state board of education subpoena power could give them license to conduct a “fishing expedition” against teachers over curriculum concerns.

Rep. Bob Lynn, a Windham Republican who wrote the bill, said it gave the education department the same power already granted to other state agencies that oversee professional licenses for careers, such as nursing. And he noted that teachers receiving a subpoena for records or materials had legal recourse to fight it.

The House Judiciary Committee could take up the bill again, but Lynn said the discussion was gridlocked along party lines.

“I’m skeptical that there’s anything we can do to make the other side agree on this,” he told NHPR in an interview after the committee vote.

Sarah Gibson joined NHPR's newsroom in 2018. She reports on education and demographics.
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