The "Conclusion" of a  51 page paper -- "Arne Duncan's NCLB Waiver ILLEGAL" by Derek W. Black, which is attached at the bottom of the article:

     With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured: the federalization of public education.  His path to the "holy grail" of education, however, was fundamentally flawed.  He only reached it by imposing waiver conditions that were neither explicitly nor implilcitly authorized by the text of NCLB. Thus, he exceeded  his statutory authority and violated the Constitution's clear notice requirements regarding conditions on federal funds.

     States only acceded to these new and unforeseeable terms because their impending non-compliance with NCLB put so much at stake financially, practically, and politically.  By the time Secretary Duncan announced the conditions, states were out of options and left in a position where the Secretary could compel them to accept terms that, under most any other circumstances, they would reject. The administration took the states' vulnerability as an opportunity to unilaterally impose policy that had already failed in Congress. In doing so, the administration unconstitutionally coerced states.

     An explict grant of conditional waiver power could have cured some of these problems, but not all. To have justified conditions as broad as Secretary Duncan's, the statute would have had to either explicitly authorized the types of conditions Secretary Duncan imposed or explicitly grant him an open-ended authority to condition waivers. The former is implausible because Congress does not possess perfect foresight. The latter is unconstitutional because it would not have been constrained by an intelligible principle. It also would have granted the Secretary a power broader than any other previously approved by the Court.

     The import of this analysis reaches far beyond education. An agency power to remake the law through statutory waivers may be a useful and efficient mechanism for adapting laws to changing circumstances and needs. Congress can, and likely will, explicitly extend this authority to some agencies in the future. But as the experience of NCLB's conditional waivers demonstrates, conditional waiver power, if not carefully circumscribed, is fraught with practical and constitutional dangers. It has the potential to give agencies a power that exceeds that of legislation under which the agency is acting. The executive can unilaterally achieve ends that neither it, nor Congress could have achieved through negotiated legislation, including bringing states futher under the regulation of agencies than the organic statute the agency is waiving. In these respeccts, conditional wiaver authority can threaten the balance of powers Constitution secrues between states and the federal government, and between Congress and the executive. Thus, it is no surprise that the NCLB waiver process helped spark a series of bitter legal fights at all branches of local, state, and federal government, with Congress suing state legislature and vice versa over the Common Core Curriculum, and teachers and students suing states over changes to teacher evaluation and retention rights. Next in line is a direct challenge to the Secretary of Education's authoirty to impose and enforce the conditions it exacted in exchange for an NCLB waiver. This Article provides important guideposts for resolving that dispute.



GOP House Leadership Opposes Homeschooling Bill, HB 1571

Rep. Shawn Jasper testified yesterday, January 25, 2012 AGAINST House Bill 1571 "on behalf of the House Republican Majority office," i.e., Rep. DJ Bettencourt.  Oddly enough the GOP leadership was the ONLY opposition to the bill at the public hearing before the House Education Committee.

In his testimony Rep. Jasper defended his opposition to changing the home education law by saying parents could not be relied on to properly assess their children.

Rep. Jasper does not trust parents.

He claims that because homeschool parents were not certified teachers it was legitimate to require that they still assess their children every year and send those assessments to someone else for oversight. He said that it is the state’s responsibility to protect children and to give them the “best education we can.”

This is clearly discriminatory since non-certified teachers in non-public schools have no such requirement to assess their students annually -- let alone send those assessments to the state for oversight.

When parents told Rep. Jasper that they were disappointed with his testimony, he said that homeschool parents should have to “prove they are doing a good job.”

So much for the presumption of innocence:  that individuals are innocent until proven guilty. 

Parents were shocked that the majority office of the House opposed this common sense bill that recognized the right of parents to direct their child’s education.

However, when checking with the majority office, it was discovered that the majority office had absolutely NO OPPOSITION to the homeschooling bill.  Rep. Jasper had just fabricated that very tall tale -- all by himself.

Please contact Rep. Jasper (shawn.jasper@leg.state.nh.us) and Bettencourt (betts24@gmail.com) and tell them to support this homeschooling bill.  Even lobbyists didn't testify against HB 1571!   2012 is an election year and homeschoolers may recall that their homeschooling legislation did better under Democrats rule of the House in 2010 than under Republicans in 2012.  In 2010 Rep. Ingbretson's homeschooling homeschooling bill fell 16 votes short of passage out of the House.

The current bill, HB 1571 eliminates the requirement to submit annual homeschooling evaluations, eliminates probation and eliminates termination of homeschooling programs in NH.  Additionally, it protects homeschoolers from privacy violations as federal regulations now allow for the distribution of student data without parental permission, even to foreign countries.

Parents would still be required to have their children evaluated annually, but those evaluations would stay with the parents.  These assessments "Shall not be used as a basis for termination of a home education program" and they "Provides a basis for a constructive relationship between the parent and the evaluator, both working together in the best interest of the child."

Text of HB 1571:  <http://www.gencourt.state.nh.us/legislation/2012/HB1571.html>

Detailed analysis:
Given the that No Child Left Behind and other federal programs intrusively collect private student data and then allow the distribution of this information without parental permission, it’s reasonable to protect these private records, allowing parents to maintain these records and evaluations at home.
New rules were announced last month by the Obama Administration and its Department of Education regarding the Family Educational Rights and Privacy Act (FERPA).  Students’ data is now more accessible. These new rules allow, without consent by parents, the government and even private companies to share students’ information.  The government can even share this information with foreign countries.
So the need for privacy is a very real concern.
However, many parents currently work with public schools to have their home schooled children evaluated.  So frequently both parties know the test results.
These test results should only a talking point.  Our objective should be how can the district constructively help the child, if or when it is needed.  Not how can the child be placed on probation or can someone terminate his program.  No public school program is ever terminated over poor test results.  So change is equitable.
Home schooled child’s records should not be maintained by public schools and disclosed under federal mandate.
Consider other home schooling statutes: 40 states have no procedure to terminate home schooling programs based upon test results.
Only 15 states require testing.  9 states require a review of the portfolio; one state (MN) requires a portfolio review but doesn’t require the submission of the evaluation.
Only 10 states have provisions to terminate a home schooling program.  Probation is found in only 4 states ranging from 1 to 2 years.
NH has the highest bar for standardized testing in the nation:  over 40th percentile. The range is 13th to 40th percentile or the top 2/3 to 3/4 stanine.
WV has essentially unlimited probation in that if the student is under the 50th percentile (which seemingly is the highest requirement), yet all that is needed is a demonstration of year-to-year incremental progress.  A student can go from the 6th percentile to the 7th percentile in a year and that’s sufficient incremental progress.  Thus, WV never terminates.







13th percentile





1 yr. probation



top 2/3 stanine (grades 3 & up only)




40th percentile

1 yr. probation



33rd percentile

2 yr. probation



25th percentile




15th percentile












top 3/4 stanine

1 yr. probation


There are currently over 5,400 registered home schoolers in NH. That's is roughly 3% of the school age population.  Yet many home schoolers in NH are underground, up to half the home schooling community is underground.  Estimates are that nearly 5% of the school age population is currently being home schooled.
Home schooling is a nationwide grassroots movement in response to the lack of recognition for parental rights in public schools.
Over the last ten years enrollment in NH pubic and private schools have fallen by 8% due to demographic changes.  At the same time NH home schooling enrollment has gone up by 33%, which does not even include the underground. [Information taken from the NH DoE website: http://www.education.nh.gov/data/attendance.htm]


Commissioner of Education Interferes with Inherent Rights of Parents to OPT OUT their Child from Statewide Assessment

The NH Commissioner of Education sent out the following directive to school districts, informing them about the participation requirements of the statewide assessment, Smarter Balanced.

"All students in the designated grades shall participate in the assessment unless the student is exempted."  Commissioner Barry's directive lists six Department-approved exemptions:

1. Medical emergency/serious illness

2. Severe emotional distress

3. Death in the family

4. Student qualifies for the NH Alternate Assessment but enroll after the start of the assessment window

5. Student who participates in another state’s assessment system

6. Exemption from ACCESS for ELLs® for student taking the NH Alternate Assessment

The commissioner claims that parents can't opt out of the assessments, because "standards are neither courses or materials."  She overlooks that assessment materials may nonetheless be objectionable and parents may opt out of objectionable assessment materials.




On January 13,2015 the Commissioner updated her technical advisory with an addendum,
 acknowledging that there were no laws under which the Department of Education could  penalize parents or students who refused to take the statewide assessments.



Next the Commissioner sends out a Technical Assistance directive telling districts that "There is no "optiong out" option for students in the law," encouraging districts to intimidate and bully students who attend schools during the assessment period - even if their parents attempt to opt them out. 

Apparently, the Commissioner has no regard for the inherent rights of parents to direct the education of their children, including opting out their child from assessments they find objectionable.  The rights of parents supersede any statutes that the Commissioner may find missing.



Testimony -- Explaining Why House Bill 276 is a Good Concept, But Bad Implementation

January 29, 2015

House Education Committee

HB 276 - An Act providing that school districts shall not be required to adopt the common core standards.


Chairman Balcom and members of the Committee,

I’m Doris Hohensee and I live in Nashua. I’m speaking today in opposition to the implementation in HB 276, but  support the concept.

I realize that we need to clarify this issue because there has been a lot of confusion and intimidation of school boards over a whether or not there is a loss of funding if Common Core standards are not adopted.

It was only after an extended exchange at the Alton School Board that the NH DoE Director Heather Gage finally acknowledged in public districts will not lose funding if they refuse to adopt Common Core.

Yet the intimidation continues. Parents had to literally bring the videotape from this Alton School Board meeting to Manchester to refute Superintendent Livingston’s claims that the Department of Education could withhold $21 million dollars in funding if Manchester didn’t adopt Common Core.  There are other districts in New Hampshire where this type of intimidation continues.

Clarifying the issue is essential.  However, the language used in this bill is problematic.  Consider the first sentence of the bill:

HB 276 “…provided that the state board shall adopt no rule pursuant to RSA 541-A, nor shall the board formally or informally adopt a policy or guideline, that requires a school district or any public school to implement or participate in the common core standards.”

Why are we talking about rules?  Districts are not required to adopt Common Core or any particular standard.  We need to explicitly affirm that districts can adopt their own standards.

RSA193-C, the STATEWIDE EDUCATION IMPROVEMENT AND ASSESSMENT PROGRAM.  RSA 193-C:1 VI makes it clear that districts do nothave to adopt state standards. It’s a local decision..

RSA 193-C:1 VI. The purpose of the statewide education improvement and assessment program is not to establish a statewide curriculum. It is, rather, to establish what New Hampshire students should know and be able to do and to develop and implement effective methods for assessing that learning and its application so that local decisions about curriculum development and delivery can be made.

Another option would be to place the prohibition in RSA 193-E, which discusses “school approval standards.”

Technically, the state Board may have adopted Common Core State Standards in 2010 and the Department may have provided assurances to the US Department of Education about Common Core, but those standards were never approved by the General Court, as required by RSA 193-E.

RSA 193-E:2-a IV explicitly requires school approval standards to be approved by the General Court.  There is no other mention of state standards in state law.  So unless the Department is operating outside of state law, NH has not officially adopted Common Core.

“The general court shall periodically, but not less frequently than every 10 years, review, revise, and update, as necessary, the standards identified in paragraph I and shall ensure that the high quality of the standards is maintained.

“Changes made by the board of education to the school approval standards through rulemaking after the effective date of this section shall not be included within the standards that constitute the opportunity for the delivery of an adequate education without prior adoption by the general court.

“The board of education shall provide written notice to the speaker of the house of representatives, the president of the senate, and the chairs of the house and senate education committees of any changes to the school approval standards adopted pursuant to RSA 541-A.”

NH’s “school approval standards” can be found in Ed 306. It’s a109 page document and is primarily focused upon implementing Competency Based Education, which no doubt is part of the Common Core reform.  But there is a different name.  Perhaps similar to Manchester adopting their own Manchester Academic Standard which are predominantly Common.  However, I think it’s important to use the right terms.

The General Court approved standards in Ed 306 during its rulemaking process -- over the objections of many parents, myself included.

Parents objected to Ed 306 for many reasons, but the main reason was that the General Court has twice rejected legislation to set up a Commission to develop strategies towards the implementation of competency-based education.

Both of these Senate bills failed in the House.

SB 192,  establishing a commission to identify strategies needed for delivering a 21st century education
----5/25/2011                   H               Inexpedient to Legislate: MA RC 273-105

SB 82, establishing a commission to identify strategies needed for developing and implementing a competency-based public education system.

-----5/21/2013                  H               Inexpedient to Legislate: MA VV

The sponsor of this defeated legislation, Sen. Stiles, then asked the state Board at its June 2013 meeting to go ahead and implement Competency Based Education.  I attended that meeting.  She essentially asked the state Board to bypass her legislative colleagues.

The state Board had no authority to adopt standards based upon Competency Based Education, which was explicitly rejected by the General Court.  This stunt was only possible due to the arduous rulemaking process, which does not get the full attention or scrutiny of the House or Senate Education Committees and JLCAR’s options are limited to placing an objection on file.   So we have standards, but they aren’t what you think they are and they got here by the back door.


The second sentence of today’s bill is problematic as it empowers the state Board to regulate any alternative standards adopted by districts to insure that they “meet or exceed state minimum educational standards.”  This puts districts under the thumb of the state Board on an issue that should be a local matter.

HB 276 “…The state board may adopt rules that require any school district not implementing the common core standards to implement educational standards that meet or exceed state minimum educational standards for all grades of the public schools.”

Normally, schools receive approval for five years.  This bill could require additional regulation and approval process for districts that rejects Common Core.  Now there’s an incentive to conform.

Any power that you think you’re giving to districts in the first sentence of this bill, is quickly taken away in the second sentence. This is a net gain for the state Board.

It should be mentioned that this rulemaking change towards Competency-Based Education is substantive and can’t be overlooked.

Ourschools should be allowed to focus on straight-forward academic concepts, skills and knowledge.  Students should not have to worry about multiple subjects at once, particularly in the primary grades. It’s demoralizing for a young student to be marked down when trying to describe why 2+2=4.  A student’s language skills may not be able to adequately deal with abstract concepts.  Yet that’s Competency Based Education.

Let students master one subject at a time in the traditional manner and receive positive reinforcement for each important mastery. Removing Competency-Based Education would not prohibit districts from creating its own multi-disciplinary courses for students.  That would remain a local prerogative, yet not mandated by the state through Competency-Based Education.

Even if we clarify that Common Core state standards are voluntary, districts will still be forced – to “meet or exceed” the state’s new Competency-Based Education standards, which the General Court rejected twice.  Both of these concerns need to be addressed.  There is legislation amended in the Senate that will resolve this problem.

Meanwhile, I ask you to oppose HB 276 and thank you for your time and attention.


Doris Hohensee

NH Families for Education, Chair <www.NHFFE.org>

Nashua, NH


House Bill 303 - Protecting the Integrity of Statewide Assessments and Insuring Parental Consent for School Psychologists

Wednesday, January 28, 2015 at 3:00 pm in the LOB Room 207 there will be a public hearing on HB 303 to protect the integrity of statewide assessments as well as insuring that parental consent is obtain before school psychologists treat students.

Also, in this bill is a provision to insure that the statewide assessment is not used as a diagnostic tool for educational or behavioral disorders.  These assessments should not be measuring student values, attitudes and beliefs.




AN ACT relative to statewide assessment standards and relative to parental consent for psychological services to students.

SPONSORS: Rep. Ferreira, Hills 28; Rep. Seidel, Hills 28; Sen. Avard, Dist 12

COMMITTEE: Education


This bill specifies additional criteria for the statewide educational improvement and assessment program and requires that no psychological services be provided to a pupil without the consent of a parent or legal guardian.

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In the Year of Our Lord Two Thousand Fifteen

AN ACT relative to statewide assessment standards and relative to parental consent for psychological services to students.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Statewide Educational Improvement and Assessment Program; Program Established. Amend RSA 193-C:4, III to read as follows:

III. The following criteria shall be used in the development of the program:

(a) Educational standards specifying what students should know and be able to do shall be clearly defined before assessment procedures and exercises are developed.

(b) The assessment exercises or tasks shall be valid and appropriate representations of the standards the students are expected to achieve.

(c) At each grade level assessed, the standards and expectations shall be the same for every New Hampshire student.

(d) Teachers shall be involved in designing and using the assessment system.

(e) Assessment frameworks and reports shall be understandable and widely disseminated to parents, teachers, administrators, other school personnel, school board members, teacher preparation programs, business people, government officials, and community members.

(f)(1) Assessments shall be:

(A) Validated for use with multiple ethnic groups and students with diverse economic backgrounds to prevent discrimination in scoring.

(B) Age-appropriate for the cognitive development of the student.

(C) Restricted to questions that may be objectively scored.

(D) Restricted to academic content questions only, and not questions regarding a student’s psychological or sociological disposition.

(2) Assessments shall not be used to:

(A) Survey or measure student dispositions, including student values, attitudes, or beliefs.

(B) Diagnose educational or behavioral disorders, or to facilitate educational treatment planning.

(g) The assessment system shall be subject to continuous review and improvement.

2 School Boards; Child Benefit Services. Amend RSA 189:49, IV to read as follows:

IV. School guidance and psychologist services. No psychological services shall be provided without written consent of the pupil’s parent or legal guardian, except as may be ordered by a court.


Please attend the public hearing on Wednesday, January, 28th at 3:00 pm. It is important for the commitee members to see parents who support this bill.

Legislative Office Building 33 North State Street Concord, NH 03301

Free parking on side streets to the west of the LOB. Closer in is 2 to 3 hour parking zones. Two to three blocks away there's unlimited free parking.


If you can't attend, please contact House Education Members with the reasons why you SUPPORT House Bill 303. 

Protect LOCAL CONTROL of our schools.

Email the entire House Education Committee members with this single email address:


Or contact House Education Members individually with your support for this bill:

House Education Committee Members: Email Committee Members
Chairman: Rick Ladd(r) Bills Currently in Committee
V. Chairman: John Balcom(r) Bills Originally Referred to Committee
Clerk: Barbara Shaw(d) Mailing list of Committee Members
Ralph Boehm (r) Glenn Cordelli (r) James Grenier (r)
Robert Elliott (r) Christopher Adams (r) Allen Cook (r)
Josh Moore (r) Jason Osborne (r) Victoria Sullivan (r)
Terry Wolf (r) Mary Gile (d) Mary Gorman (d)
June Frazer (d) Andrew Schmidt (d) Mel Myler (d)
Deanna Rollo (d) Mary Heath (d) James Verschueren (d)

Senate Bill 157 - Imposing a UNIFORM Civic Program on Students Undermines Local Control

Senate Bill 157 requires New Hampshire students to take a FEDERAL civics test as a requirement for graduation.  This bill is well intended, but it's problematic.

(1) Haven't we learned anything by now of the danger involved in authorizing the State or Federal government impose its UNIFORM curricula on our children

There's Common Core State Standards.  That's fairly recent.  Hardly a great success. Parents nationwide are in an uproar about this federally imposed uniform standards, which is de facto, a national curriculum.

And then there's the old Acts of Uniformity from England which resulted in hundreds of families leaving Europe and setting the New World.  Being free to instruct their children in accordance to their beliefs was so important that these people established Education Laws to jealously guarded and protect the local independence of schools. In 1784 they drafted a constitutional guarantee to communities to ELECT THEIR OWN TEACHER, guaranteeing independence from State interference in their taxpayer supported public schools. See NH Constitution, Pt. 1, Art. 6.

"...therefore, the several parishes, bodies, corporate, or religious societies shall at all times have the right of electing their own teachers, and of contracting with them for their support or maintenance, or both.

(2)  Overlooking these lessons from history, let's look at the proposed "United States Citizenship Civics" test.  Does this civics program provide students with accurate information? 

Here's a question from that website:

"Under our Constitution, some powers belong to the federal government.  What is one power of the federal government?" 


"Civics Flash Cards for the Naturalization Test," U.S. Citizenship and Immigration Services,  page 85

Being authorized "to coin money" is very different from being authorized to operate a printing press.

The US Constitution, Section 8:
"To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures."

(3) Once this mandate is in place, parents lose their voiceLocal control is diminished.  Parents will have no control over the content of a Federal test, undermining their right to direct the education of their children.

How can anyone support FEDERAL control over a required-for-graduation Civics program, then turn around and claim to support LOCAL control?

Here's an example of a locally devised Civics test:

"1954 8th Grade Civics Test - Could You Pass?"


(4) Mandating this Civics program from the State is an unfunded mandate Down shifting costs to the Districts violates the NH Const. Part 1, Atr. 28-a.

(5) Finally, the bill requires home educators to incorporate this federal civics test into their programs.  It's wrong for the State to interfere in non-public, or private, education programs.


For all these reasons, PLEASE OPPOSE SENATE BILL 157.


AN ACT establishing a civics education requirement as a condition for high school graduation.

SPONSORS: Sen. Birdsell, Dist 19; Sen. Avard, Dist 12; Sen. Reagan, Dist 17; Sen. Bradley, Dist 3; Sen. Fuller Clark, Dist 21; Sen. Stiles, Dist 24; Rep. Weyler, Rock 13; Rep. Cordelli, Carr 4; Rep. Notter, Hills 21; Rep. Murotake, Hills 32

COMMITTEE: Education


This act establishes a civics education requirement as a condition for high school graduation or its equivalency.

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189:11 Instruction in National and State History and Government; Civics Instruction.

I. In all public and private schools in the state there shall be given regular courses of instruction in the history, government and constitutions of the United States and New Hampshire, including the organization and operation of New Hampshire municipal, county and state government and of the federal government. Such instruction shall begin not later than the opening of the eighth grade and shall continue in high school as an identifiable component of a year’s course in the history and government of the United States and New Hampshire.

II. In all public high schools in the state, including public academies, chartered public schools, and high school level home education programs, all students shall, as a condition for graduation or equivalency, achieve a passing grade on the United States Citizenship Civics test, produced by the United States Citizenship and Immigration Services. A minimum score of 60 percent shall be considered a passing grade. High school students may take the test as many times as necessary to fulfill the requirements of this paragraph.


Please attend the public hearing. DATE OF HEARING IS TO BE DETERMINED. It is important for the commitee members to see parents who oppose this amendment.

Legislative Office Building 33 North State Street Concord, NH 03301

Free parking on side streets to the west of the LOB. Closer in is 2 to 3 hour parking zones. Two to three blocks away there's unlimited free parking.


If you can't attend, please contact Senate Education Members with your strong OPPOSITION to Senate Bill 157

Protect LOCAL CONTROL of our schools.

John Reagan  Chairman (R)



Nancy Stiles  V Chairman (R)



Kevin Avard   (R)



Molly Kelly   (D)



David Watters (D)



The Intimidation of Districts Continues


Manchester still defiant on statewide testing

MANCHESTER — Mayor Ted Gatsas and the school board maintained their defiant stand against participating in the Smarter Balanced statewide assessment test, despite new warnings from the education commissioner that the move could imperil millions in federal funding for the district and the state as a whole.

The board voted on Monday night to refer to committee a proposal for a district-based assessment test, along with the possibility of giving parents an opt-out option for assessment tests.

The vote essentially disregarded a letter last week from state Education Commissioner Virginia Barry, in which she warned of “significant enforcement actions if (the district) refuses to comply with its obligation to participate in the uniform statewide assessment.”

In the letter, Barry reiterated that the district could not get a waiver from Smarter Balanced, set to be implemented in the spring. She said she confirmed that the state is obligated under federal education law to institute a statewide assessment test that is “used to measure the achievement of all children.”

Barry, who did not attend Monday’s meeting, added that Manchester’s actions potentially place “federal education funding in jeopardy statewide.”

In the fall, the state DOE withheld about $3.5 million in federal funding due to the district, only releasing the funds last month after Superintendent Debra Livingston wrote a letter in protest. The latest letter raises the possibility that the DOE could again withhold funds, which, Barry said in her letter, the state is authorized to do.

Livingston told the board on Monday that were the state DOE to withhold the next round of funding for the school year, it could leave a $5.8 million hole in district’s budget and force the layoff of teachers and other staff.

Gatsas said the entire state could be affected by Manchester's actions — involving $50 million in funding by his calculations. That should “get the attention” of legislators around the state, he said.

“Everyone wants to go to Concord and talk about local control; well this is clearly about local control,” he said.

Other board members expressed support for Gatsas’ position.

“Perhaps this is the beginning of us cutting those strings that keep us puppets to the feds,” Ward 10 board member John Avard said. “Maybe we could get rid of some of those programs that we don’t need in the district.”

But Ward 3 board member Chris Stewart, who has supported the push for national education standards, suggested that the district was acting recklessly.

“We're talking about $5.8 million going away,” Stewart said. “Is the Board of Mayor and Aldermen prepared to raise taxes (if the federal funding does not come through)?”

Only two board members voted against the proposal to have the board’s Curriculum and Instruction Committee take up the topic of a district-based assessment test: Stewart and Ward 8’s Erika Connors.


- See more at: http://www.unionleader.com/article/20150113/NEWS04/150119701/0/169#sthash.hGJWINJ9.dpuf

Below is a threatening letter from the US Department of Education to the NH Department of Education regarding the misbehaving Manchester School Committee. This letter was received on Dec. 15th 2014, which is quite a while ago.

So far, Manchester voted against the Common Core tests and is holding firm. 

What's next?





The Honorable Virginia M. Barry

Commissioner of Education State of New Hampshire Department of Education

101 Pleasant Street

Concord, NH  03301

Received: DEC  15, 2014

Dear Commissioner Barry:

The U.S. Department of Education (ED) is working with State-led efforts to reform schools across the country. I know how deep your commitment has been to raising standards in New Hampshire, and I want to support you and your local districts as you carry out this work.

I  am writing about the discussions that are taking place in School Administrative Unit (SAU) 37, the Manchester School District, considering whether or not to withdraw from participating in New Hampshire's Statewide education assessments.  I understand that the New Hampshire Department of Education (NH DOE) is looking for guidance from ED on possible consequences  for SAU 37 if it moves forward.

Section 1111 (b)(3) of Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA), requires each State that receives Title I, Part A funds to implement a set of high-quality, annual assessments to all students in the State in reading / language arts and mathematics in grades three through eight and high school.  Because the NH DOE receives Title I, Part A funds, it is responsible for implementing this requirement in all of its school districts. Moreover, because SAU 37 also receives Title l, Part A funds, it has assured that it will use the results of those assessments to review annually the progress of the schools it serves and provide assessment results to parents and teachers.  NH DOE is responsible for ensuring that its districts comply with all applicable requirements.  Failure to participate in these State assessments by a school district would violate the provisions of Title I and places the district out of compliance with Title l's requirements. NH DOE is responsible for ensuring that its districts comply with all applicable requirements.

Section 440 of the General Education Provisions Act (GEPA) (20 U.S.C.1232c) gives NH DOE the authority to enforce Federal requirements as they apply to its districts.  This authority includes suspending or withholding payments, provided the State educational agency (SEA) provides a local educational agency (LEA) with the relevant due process.  This authority is further reinforced by 34 C.F.R. § 80.43, which lists specific enforcement actions an SEA may use to address instances of noncompliance with Federal statutes or regulations.  lf SAU 37 does not participate in New Hampshire's State assessments, the district would risk significant enforcement action by NH DOE which might




The Department  of Education's mission is to promote  student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access.


Page 2 - The Honorable Virginia N. Berry

include placing a condition on an LEA's Title I, Part A grant; initiating additional monitoring; placing an LEA on reimbursement; or designating an LEA as "high risk" under section 80.12 of EDGAR.

In addition SAU 37 could find itself out of compliance with provisions of other Federal programs that require Statewide assessment results, putting additional funds as risk. These additional programs include those targeting student most at risk, including, but not limited to: the School Improvement Grants (SIG) program; Title III of the ESEA; Part B of the Individuals with Disabilities Education Act (IDEA); and programs for rural schools and migrant education, in addition to programs focused on professional development and other supports for teachers, such as Title II of the ESEA. Statewide participation in reading / language arts and math assessments is a fundamental requirement of the ESEA.                                                                         

ED stands ready to work with NH DOE to assist in working with SAU 37 to ensure compliance with the requirements of the ESEA and supporting the success of all of its students.



Deborah S. Delisle

Assistant Secretary

House Bill 242 - Expands TESTING & TRACKING and Reduces LOCAL CONTROL

House Bill 242 undermines Local Control.  Please OPPOSE HB 242.

A Public Hearing on House Bill 242 will be held on Wednesday, January 28, 2015 at 1:00 PM in the Room 207 of the LOB (Legislative Office Building) in Concord.


It would be nice to know that students are at grade level for reading and even mathematics by the end of grade 3.  It might be reassuring to know that students are "ready for the workplace" at grade 11.

However, this bill requires students to be more accountable to the State!  Students don't need  expanded testing!

Drill and Kill testing is toxic to learning.  The test and punish model hasn’t worked.   Students are not "workforce capital"  to be prodded and poked at will. 

It may sound beneficial to allow districts to provide an alternative assessment for grade 11.  However, at the same time, this bill encourages districts to sort students and place them on separate tracks.  What happens when a district decides it's easier to place certain students in a lower track than educate them?  Not all students show their full potential early on.  Some students blossom later than others.

Students shouldn't be sorted into separate tracks.  Tracking is a European practice.  Americans have not, and should not, support tracking for students. 

Leveling may be helpful, because the goal is to help students achieve proficiency. Some students may learn faster or slower than others.  However, creating divergent tracks and sorting students into those tracks allows schools to control a student's future. 

Lets allow students to determine their own goals and set their own futures.

Expanded testing and tracking undermines Local Control and innovation. 


1 Statewide Education Improvement and Assessment Program. Amend RSA 193-C:3, IV(i)-(j) to read as follows:

(i) At the end of grade 3, to determine if pupils are [reading] at grade level in reading and mathematics on a standardized [reading] test to be developed by the department as part of a statewide assessment [system] program.

(j) At the end of grade 11, to determine if pupils are proficient in the academic areas necessary to be ready for the workplace, or for postsecondary education as measured on a standardized test aligned with educational standards. As an alternative to the statewide assessment, pupils in career and technical education programs may demonstrate achievement of educational standards by assessments which may be embedded in the career and technical education curriculum that focus on the pupil's ability to demonstrate an understanding of technical knowledge, skills, and work habits which are aligned to academic education standards and career and technical education and industry standards designed to assess technical content.


A Public Hearing on House Bill 242 will be held on Wednesday, January 28, 2015 at 1:00 PM in the Room 207 of the LOB (Legislative Office Building) in Concord.

Please attend the public hearing. It is important for the commitee members to see parents who oppose this amendment.

Legislative Office Building 33 North State Street Concord, NH 03301

Free parking on side streets to the west of the LOB. Closer in is 2 to 3 hour parking zones. Two to three blocks away there's unlimited free parking.


If you can't attend, please contact House Education Members with the reasons why you OPPOSE House Bill 242. 

HB 242 Expands TESTING and Undermines LOCAL CONTROL of our schools.

Email the entire House Education Committee members with this single email address:


Or contact House Education Members individually with your OPPOSE for this bill:

House Education Committee Members: Email Committee Members
Chairman: Rick Ladd(r) Bills Currently in Committee
V. Chairman: John Balcom(r) Bills Originally Referred to Committee
Clerk: Barbara Shaw(d) Mailing list of Committee Members
Ralph Boehm (r) Glenn Cordelli (r) James Grenier (r)
Robert Elliott (r) Christopher Adams (r) Allen Cook (r)
Josh Moore (r) Jason Osborne (r) Victoria Sullivan (r)
Terry Wolf (r) Mary Gile (d) Mary Gorman (d)
June Frazer (d) Andrew Schmidt (d) Mel Myler (d)
Deanna Rollo (d) Mary Heath (d) James Verschueren (d)

Testimony -- Explaining Why Senate Bill 101 is Moderate Legislation

January 20, 2015

Senate Education Committee

SB 101, An Act prohibiting the state from requiring implementation of common core standards.


Chairman Reagan and members of the Committee,

The first section of the bill prohibits the state from requiring the implementation of Common Core state standards.  This changes nothing. It only clarifies existing law.

Why is this necessary?  Because there has been, and continues to be, a substantial amount of misinformation being fed to, and even intimidation of, district school boards with regard to the adoption of Common Core.

I spoke before the Alton School Board back in 2013 about Common Core standards. In that discussion, which included Department of Education Director Heather Gage, it was disclosed that districts are not obliged to adopt Common Core standards. Moreover, she assured the Board that no state funding would be lost if a district elects not to adopt these standards. 

A month or so later this same discussion came up before the Manchester School Committee. Superintendent Livingston warned her school board that state funds would be in jeopardy if Common Core was not adopted. It was only after the videotape from the Alton school board meeting was brought to the attention of the Manchester board that this issue was clarified.  Mayor Gatsas was quite angry and immediately called the Commissioner to express his displeasure with the lack of transparency over the adoption of these standards.

Has this confusion stopped?  No. Many superintendents in other districts are still pushing  school board members and suggesting that state funds are at risk if Common Core is not adopted. This bill resolves this confusion and makes it clear, once and for all, that no funds would be lost if a district elects not to adopt Common Core.


The second section of this bill defines Competencies as “student learning targets that represent academic concepts, skills, and knowledge within a single content domain, such as English / language arts and reading, mathematics, science, social studies, art, language, health, or physical education.”

What does this do? It restores traditional educational practice.  The Department recently took it upon itself to implement competency-based education, without statutory authority, based upon its controversial definition of “competencies”, which does not focus upon academics concepts, skills and knowledge and may span multiple subject areas.

 Ed 306 Definition:

Competencies” means student learning targets that represent key content-specific concepts, skills, and knowledge applied within or across content domains

Why is this necessary?  Because the General Court has rejected competency-based education. This bill, SB 101, simply restores the status quo until this legislature authorizes any change. 

By way of history, Sen. Stiles introduced legislation in 2011 and 2013 seeking to establish a commission to develop strategies towards the implementation of competency-based education.  Both of these Senate bills failed in the House.

SB 192,  establishing a commission to identify strategies needed for delivering a 21st century education
----5/25/2011                   H               Inexpedient to Legislate: MA RC 273-105

SB 82, establishing a commission to identify strategies needed for developing and implementing a competency-based public education system.

-----5/21/2013                  H               Inexpedient to Legislate: MA VV

Next she went before the state Board of Education, instructing them to implement competency-based education anyway, bypassing the will of her colleagues in this legislature. 

The change towards competency-based education is substantive. It unconstitutionally downshifts significant costs onto our districts. But most importantly it proposes to transform our schools in opposition to the will of our elected representatives.

If this change is to be made, let it be re-introduced into this legislature and successfully passed before it is implemented without thought or concern for its cost or its effect in our schools and on our children.

Until then let our schools focus on academic concepts, skills and knowledge.  Students should not have to worry about multiple subjects at once, especially in the primary grades. It’s demoralizing for a youngster to be marked down when trying to describe why 2+2=4 because his language skills can’t adequately deal with a concept which is cognitively beyond his developmental ability. 

Let students master one subject at a time and receive positive reinforcement for that important mastery. This bill does not prohibit districts from creating multi-disciplinary projects for their students.  It’s been done for decades before competency-based education.

Nothing is forced on the districts with today’s bill. It simply resets the norm for districts that choose not to adopt Common Core and don’t want Common Core surreptitiously implemented in their schools.

We should not say on the one hand that Common Core state standards are voluntary, while on the other hand force districts – through competency-based education – to implement Common Core without the legislature revisiting and approving this issue.








January 22, 2015

Dear Senators' Reagan, Stiles, Avard, Kelly and Watters,

My name is Sue O’Connor, I live in Rochester and have served on the Rochester School Board for 2 terms. I am not speaking for the board itself, but what I have experienced during my tenure. Aside from the calls I receive by those who elected me, I have first hand knowledge of how poorly written and convoluted the curriculum associated with CCSS truly are. I have grandchildren in K, 3rd, 5th and 7th grades. The fact is CCSS was pushed on the state and then the districts with the usual carrot and stick. The problem with this, like most things in the educational community the standards, which require a curriculum were produced in great haste. This is seen in the daily illogical assignments children throughout this country and state have to struggle through. I urge all of you to research the development of CCSS yourselves. Do your own leg work and do not rely on the hearsay of others.

To date, Common Core is destroying the education system of the United States. Basic knowledge of this great country is slowly being eliminated. As time goes on our children and grandchildren will not know or understand how this great country came about. Immigrants taking citizenship exams know more about this country than what is now being taught in our schools, how sad is that? When I was growing up math was math. The idea that we now have “new math,” “reform math” or even “fuzzy math” teaching our children abstract thinking in the elementary schools is ludicrous. Children need to have the basics explained to them and very rudimentary methods in order to build “higher order thinking”. Why are private citizens the likes of Bill Gates, actually having a say in our education system? Why is the Federal Government attempting to take away local control of our schools? If you cannot answer these questions, as an elected official, then shame on all of you.

Rochester is in the midst of Competency Based Education, which is formerly known as Outcome Based Education. This was a failure and removed from schools decades ago. How quickly we forget the lost generation from that fiasco, now there will be yet another lost generation. It is important to understand that Competency Based Education and CCSS are all tied together with obtaining a waiver for NCLB. It is also mandatory if a district is attempting to obtain a waiver from Smarter Balanced Assessment.

As a community, we were not ready whatsoever to have this thrust upon our teachers or our students. As a board member and taxpayer, the community was lied to with regard to competencies. I have been made aware that teachers who questioned the competencies and did not let the issues drop were removed from the development committee. Is this not why we have teachers on a committee, for their opinion?

Our children who excel are now bored, unmotivated, and suffer from mediocrity. There is absolutely no “rigor” to the competencies and I have seen the work from 3rd, 5th, and 7th grades and, in my opinion, it is substandard. There is less work performed now than previously. No homework, children can redo work and assessments again and again and again. This is a practice in the middle and high school. Adults know that they cannot make the same mistakes again and again and again and expect to have a job. Why teach our children that way?

A lack of responsibility has reared its ugly head on the part of some teachers, administrators, and students. An example of what is being taught in our schools in 6th grade ELA: For a 6th grade class’s first book report one must COLOR four pictures and label the pictures. For the record this is how book reports are still being done in the 7th grade. This may be rigorous for the students who struggle, but insulting to those who do not. Those who are pushing Competency Based Education do not tell parents that “success” for all children means “success” in demonstrating only the dumbed-down outcomes that the slowest learners in the class can attain. Competency Based Education means “success” in mediocrity rather than excellence, as a true competency is precise and complex and needs to constantly be reviewed and updated. There is no funding for special programs for our gifted children.

Competency Based Education is based on the fact that the student has “mastered” the material. Most research/opinion papers/point papers are based on the fact that Competency Based Education had been implemented in the post-secondary education setting, with a major influence in the health science field, as competency based education takes into account life skills the learner needs and the demands of the workplace. Given the age of the students who will be subjected to Competency Based/Outcome Based Education, if they have not “mastered” the material in the elementary grades what “life skills” will they be bringing to their future employer?

In elementary grades, Competency Based Education does not teach children essential reading, writing, and arithmetic skills, but pretends to teach them “higher order thinking skills” instead. Competency Based Education ignores the obvious fact that one cannot engage in higher order thinking until one has some facts to think about.

All of you should be asking, “Where is the replicable research or studies that show that this works?”

I have advised many families to either home school or remove their children from the topics they find offensive and to opt out of testing. I do this because the child is the most important part of the equation that politicians seem to forget about. It is our children’s education that politicians are spinning the roulette wheel on and it is our children who are losing. I am asking you to please support SB101.

Sue O’Connor
47 Walnut Street
Rochester, NH 03867





January 21, 2015

Dear Senators' Reagan, Stiles, Avard, Kelly, and Watters,

My name is Kathy Dunton, and I live in Rochester, NH. I attended the Education Hearing for SB 101 yesterday. I didn’t speak, as I have never been to a Hearing before and wasn’t sure how it worked. That being said, I do have a few things to say about this Bill. I am in favor of this Bill. I am a member of the Rochester School Board. I am NOT speaking on behalf of the Rochester SB, but instead on behalf of over 1800 parents, teachers and taxpayers that elected me. And I am speaking for the parents that open their kid’s backpacks and pull out age and grade inappropriate assignments. When I ran for SB last year, I had 1 issue. That was Common Core and local control. CCSS had been quietly implemented over the last few years in my district. There was never any official vote held. It just happened. The person who formally sat in my ‘At Large’ seat had been on the SB and a House Rep for over 16 years. She also sat on the Education Committee in the House. She is a proponent of CCSS and whom I directed my questions to when I began to attend SB meeting in 2012. I never got actual answers to my questions.

So I researched and wrote to the papers and blogged about what I had learned. I found that no one knew anything about CCSS in my area, not even the teachers. What they did know was that as new students’ workbook and text books were shipped in, ‘Common Core Aligned’ was appearing on the covers.

At the same time that this was happening the district began to implement a new grading system known as ‘Competencies’ in the high school. Again, this wasn’t anything that the teachers or parents had ANY input on. It was just implemented coming down from the federal and the state government. Competencies has been a nightmare as they have now been implemented in the middle and elementary schools as well. The only time anything positive is said about this latest fad passing through our educational system, is within the walls of a SB room, by the few people in charge of giving the teachers their new teaching assignments. Teachers have been told to play ball, or else. They are afraid. Students and parents are frustrated for all the reasons that were spoken of during the hearing yesterday. The big issue here is that CCSS is a top down educational reform that was put into place by non-educators and business and big government elite, not by any elected officials.

No one that has pushed this through our state and into our school districts has been elected. During the last year that I have been on the SB, I have all but been told that we have to implement the standards, and take part in the Smarter Balanced Assessments or the state will cut off our Title One grant, which is $1 million dollars. That kind of feels like extortion or blackmail. The only ones that benefit from these assessments are the testing companies that gather all kinds of personal data, which is another can of worms. I shudder to think of how many teaching positions we will have to cut in order to pay for this testing within our budget.

So this is why I am asking you to support SB 101. We don’t have local control. We can say we do, but CCSS and the SBAC was pushed down into the districts by the appointed, NOT by the elected. Bringing our much needed tax dollars back into our districts, should not be held with strings attached. Again, I am speaking for the people of Rochester that asked me to stand up for them, once they realized that hadn’t been happening.

Kathy Dunton
52 Old Dover Road
Rochester, NH 03867

NH Department of Education Warns Districts NOT to Inform Parents of their Rights

NH Department of Education OBJECTS TO TRANSPARENCY regarding the Right of Parents to Refuse to Allow their Child to Take Statewide Assessments.

There's no penalty when a parent REFUSES, but the Department of Education warns districts NOT to keep parents fully informed that they may REFUSE the statewide assessments!!!


The NH Department recognizes that parents may REFUSE to allow their child participate in the annual statewise assessments. This parental prerogative is recognized on the state website seen below:

"Extended absence, family vacations, significant medical and emotional issues, and parent refusals are but a few of the issues that are not entirely within the district's control."


What happens when a district decides to send a letter home to parents, notifying them that they have the RIGHT to OPT OUT and providing them with a form to REFUSE to allow their child to take the statewide assessments? 

The Manchester School Committee voted 11-3 on January 12, 2015 to instruct its Curriculum & Instruction Committee to devise a letter to send out to parents, notifying them of their Right to REFUSE.

The NH Department of Education and the district both recognize the right of parents and guardians to direct the education of their children.  Isn't that great?

However, the NH Department of Education is objecting to districts notifying parents of their rights!!!


The Department does not like transparency.  Read the letter from the NH Department of Education, Director of the Division of Educational Improvement. 

There's no penalty when a parent REFUSES, but the DoE doesn't want districts telling  parents they may REFUSE!!!   Of what are they so afraid?

--------   Message --------
Subject: RE: Request for information on Standardized Assessment REFUSALS
From: "Gage, Heather" <Heather.Gage@doe.nh.gov>
Date: Tue, January 13, 2015 6:15 pm
To: "'rich@girardatlarge.com'" <rich@girardatlarge.com>
Cc: "Barry, Virginia" <Virginia.Barry@doe.nh.gov>, "Leather, Paul", <Paul.Leather@doe.nh.gov>

Mr. Girard,
Thank you for your questions. The Department of Education only publically reports participation rates. There are no sanctions if a school or school district has a “low” participation rate. However, as you know, state law requires (and federal law if they accept federal funds) all schools to implement the statewide assessment.
RSA 193-C states, “each year, a statewide assessment shall be administered in all school districts in the state in grades 3 through 8 and one grade in high school. All public school students in the designated grades shall participate in the assessment, unless such student is exempted…,” Given this law, we would need to check with our legal counsel to understand if there would be (and if so, what would those be) any consequences to a school if they “created, distributed or accepted so called “opt out” forms.”
Heather Gage, Chief of Staff
Division of Educational Improvement, Director
101 Pleasant Street
Concord, NH 03301-3494

--------  Message --------
From: rich@girardatlarge.com [mailto:rich@girardatlarge.com]
Sent: Tuesday, January 13, 2015 12:39 PM
To: Gage, Heather
Subject: RE: Request for information on Standardized Assessment REFUSALS
Ms. Gage.
Is there any consequence to a school or school district for having a lower participation rate?
Also, if a school board/district were to create, distribute and or accept so called "opt out" forms, is there any provision in any law or regulation that would cause them to be sanctioned?  If so, what law or regulation, by whom, and in what manner?
Thank you.
Rich Girard
Humble Host
Girard at Large in the Morning


Read the memo below from the Department website.  There's no penalty when a parent REFUSES, but the Department of Education instructs district s NOT to keep parents fully informed that they may REFUSE the statewide assessments!!!