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Education Commissioner Wants Subpoena Power

Published Wednesday Mar 8, 2023

Author Ethan DeWitt, NH Bulletin

Frank EdelblutDepartment of Education Commissioner Frank Edelblut attracted attention in 2022 when he penned an op-ed stating that teachers were introducing bias into the classrooms and inserting messages supporting Black Lives Matter and LGBTQ+ causes. (Ethan DeWitt | New Hampshire Bulletin)

When the New Hampshire Department of Education investigates a teacher for a potential code of conduct violation, they send a notice in the mail. Under a new proposed law, that teacher could also be served a subpoena. 

The New Hampshire Department of Education is pushing to be given the power to subpoena teachers or school district officials that it is investigating, sparking a new debate over the regulation of public schools. 

Proposed legislation in the House would allow the commissioner of the department to issue a subpoena “for persons, relevant documents, and relevant items” that would help it carry out any investigation. 

Introduced by Rep. Bob Lynn, a Windham Republican, the proposal is a late amendment to an existing education bill, House Bill 533. Lynn’s amendment would scrap that bill and replace it with one granting the subpoena power.

In an interview Monday, Lynn said the proposed amendment allowing the subpoenas was requested by the department. 

“They say the reason they need this is that sometimes licensees and even school districts are not cooperative,” Lynn said. “They need to get documents, let’s say from a school district, and the school district just won’t provide them.”

The proposal is the latest flashpoint in an ongoing divide over how much the state should regulate the behavior of New Hampshire schools and teachers. Advocates, like Lynn, say allowing subpoenas would simply strengthen investigations that the department already conducts against educators. 

Opponents, who include teachers unions, have called the legislation unnecessary, noting that the Department of Education can currently request the Department of Justice to issue subpoenas in code of conduct cases in schools. And they argue putting the subpoena power in the Department of Education could lead to “fishing expeditions” and intimidate teachers. 

“It’s going to take an already anxious and fear-filled workforce and make them feel even more concerned that every single thing they do is under a microscope,” said Deb Howes, president of the American Federation of Teachers of New Hampshire. 

Under state law, New Hampshire licensed teachers are subject to a code of conduct and code of ethics that are designed by the State Board of Education. 

The code of conduct requires educators to interact with students in appropriate settings; communicate with students in a respectful and culturally sensitive manner; honor confidentiality; treat parents and guardians respectfully; commit to “equality, equity, and inclusion” of colleagues, students, and parents; use social media responsibly; and other requirements.

Discriminating against people; possessing a drug unlawfully; falsifying professional qualifications; possessing or using alcohol on school grounds; failing to provide adequate supervision of students; accepting gifts; assaulting students; and soliciting sexual relationships are all barred in the code.

The Department of Education has the power to investigate any potential violations of those codes. After finishing a formal investigation, the department can decide to reprimand the educator, suspend their license, revoke their license entirely, or drop the investigation. The educator can appeal a decision against them, taking the matter to an adjudication process at the State Board of Education.

Lynn said the department had requested the subpoena power because it had been frustrated by a lack of cooperation from some educators under investigation. Having a subpoena power would allow the department to force cooperation or take the matter to a state court, which could compel the teacher to comply.

The legislation would allow the department to mail the subpoena or deliver it in person. As written, the amendment would give educators at least 48 hours to honor a request to testify in person, and at least 15 days to produce any documents relevant to the investigation. But Lynn said he will propose changing that to a minimum 10 days for each request, after consulting with the Department of Justice.

Lynn noted that the state’s Office of Professional Licensure and Certification already has subpoena powers over the licensed professionals that it oversees, allowing it to compel participation in their own conduct investigations.

“I don’t think it’s a good argument in response to any organization having subpoena power to say, ‘Well, they might use the subpoena power for something that I don’t like,’” he said. “Yeah, OK, but that’s not a reason for them not to have subpoena power. If they abuse it in some way, then they can be held accountable for their abuse.” 

But teachers unions contend that most educators already do comply with requests for documents and information, and that it’s in their best interest to do so in order to keep their licenses. During code of conduct investigations, teachers may request union representation to help with their defense. 

“I am not aware of anyone not cooperating with the Department of Education,” Howes said. “I’m aware of a lot of districts that are bending over backwards to do what they can to cooperate as long as they can get clear directions.” 

Howes and other union representatives argue the subpoena power in the legislation is too broad, and could be used to gather information even if the investigation had little merit. 

“If they are just trying to address a few outlying cases, they really need to write something very, very narrowly tailored,” she said. “But this allows, essentially, a political appointee to go on a fishing expedition at any point in an investigation to subpoena teachers or their educators and records.”

National Education Association of New Hampshire President Megan Tuttle said the organization is “very concerned” about the amendment. 

“We see it as another attempt at an overreach by the Education commissioner that leaves us wondering why he is seeking this new expanded authority,” Tuttle said in a statement. 

The amendment is up for a special hearing Wednesday. Because it was submitted as a late legislative item, it needed special approval from House Speaker Sherman Packard to proceed, Lynn said. Packard ruled that the amendment was “germane” to the underlying bill but requested it receive a special hearing.

Department of Education Commissioner Frank Edelblut attracted attention in 2022 when he penned an op-ed stating that teachers were introducing bias into the classrooms and inserting messages supporting Black Lives Matter and LGBTQ+ causes. He released an accompanying document filled with photos and screenshots of materials in New Hampshire classrooms that he said fit that description, many of them submitted to the department by parents.

A spokeswoman for the department declined to say whether any of the teachers featured in the commissioner’s document might have violated educator codes of conduct, and whether the department might issue subpoenas for similar conduct in the future. 

But in a statement, the department reiterated the point that other departments have subpoena power, too. 

“House Bill 533 would allow the New Hampshire Department of Education to subpoena documents and people that are relevant to an educator misconduct case, pursuant to the code of conduct,” the statement said. “This authority would be identical to the subpoena powers of the Office of Public Licensure, which also oversees license holders from various professions.”

This story is courtesy of NH Bulletin under creative commons license. No changes have been made to the article.

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