inside sources print logo
Get up to date New Hampshire news in your inbox

Judge Recuses Himself From Ed Funding Case

Grafton Superior Court Judge Lawrence MacLeod is recusing himself from the state education funding lawsuit, saying the property he owns in one of the towns intervening in the case could create the perception of a conflict of interest.

MacLeod recused himself from the case in an order he released Wednesday before he had a chance to rule on the injunction. The plaintiffs are seeking to stop the state from setting a property tax rate for the coming year.

MacLeod and his wife own more than $1 million of property in the city of Lebanon, one of the communities trying to now intervene in the case as part of the Coalition of Communities. It is fighting the plaintiff’s injunction that seeks to keep the Statewide Education Property Tax, or SWEPT, rate at $0.

“The undersigned justice and his wife have a legal and/or beneficial interest in one residence, two rental properties, and two undeveloped lots in Lebanon with a combined property tax assessment in excess of $1,000,000,” MacLeod wrote.

The Coalition, formed in 2006, is made up of mostly towns and cities with high property values working against the return of a “donor” and “receiver” town system for education funding.

The plaintiffs in the case, represented by Andru Volinsky, John Tobin, and Natalie Laflamme, claim the state continues to ignore the 1990s Claremont decisions issued by the New Hampshire Supreme Court by using varying rates for the statewide property tax. They claim it punishes poor communities with lower property values.

The plaintiffs argued last week before MacLeod that New Hampshire cannot set any SWEPT rate for the coming year as the system is currently in violation of the Claremont rulings and flies in the face of the state constitution. Currently, property-rich towns that raise more in taxes through the SWEPT tax are allowed to keep the surplus.

After that hearing, the Coalition filed to intervene in the case and stop MacLeod from approving the injunction. Coalition attorney John-Mark Turner wrote that these would-be “donor” communities would face chaos and uncertainty and be forced to raise local property taxes if the plaintiffs prevail. They oppose changing the current system.

MacLeod’s recusal states that since he and his wife could potentially benefit from the Coalition’s efforts, he needed to step aside.

“(I)t appears that the undersigned justice and his spouse may enjoy a tax advantage under New Hampshire’s existing education taxation structure given the assessed values and fortuitous locations of their real properties not available to the plaintiffs and other real property owners similarly situated, such that the undersigned justice and his spouse would or could be placed at more than a de minimis economic disadvantage should the plaintiffs prevail in the case,” MacLeod wrote.

The SWEPT accounts for 30 percent of education funding in New Hampshire. Under the law, as many as 30 wealthier communities in New Hampshire are keeping a portion of the money raised through the SWEPT, while some poorer towns are paying more, according to the lawsuit.

SWEPT started in 1999 as a response to the Claremont decisions, which found that the state has a constitutional obligation to fund an adequate education. The money raised, more than $360 million estimated in the coming year, is used to fund state adequacy grants.

The debate is over the definition of “adequate.”

According to the plaintiffs, wealthy communities raise more funds per pupil through SWEPT than the state’s low standard for what it asserts is the cost of an “adequate” education. Further, since 2011, the state has allowed those wealthy towns to keep the surplus, which flies in the face of the Claremont decisions, according to the motion.

“The SWEPT tax as currently administered is not uniform in rate as the State allows towns with surplus SWEPT funds to either set a negative local education tax rate to offset the State’s official equalized SWEPT tax rate or retain the excess,” the plaintiff’s motions states. “Both of these mechanisms have been previously deemed unconstitutional by New Hampshire courts.”

MacLeod’s order states a new judge will be assigned to the case soon. It is not yet clear how much of a delay his recusal will add to the lawsuit’s timeline, or if the new judge will have to rehear the parties on the injunction against the SWEPT rate.

Shoddy Reporting and ‘Woke’ Bias: Spofford Sues NHPR

Former Granite Recovery Centers CEO Eric Spofford is suing New Hampshire Public Radio reporter Lauren Chooljian, alleging she has engaged in a biased campaign targeting the politically-connected businessman.

According to his lawsuit, filed Tuesday in Rockingham Superior Court, “Chooljian viewed Eric as her opportunity to ascend the journalism ranks. To Chooljian, a #MeToo-styled report about a white male, Republican donor, and bold and successful businessman, who made money in the substance use disorder treatment business, had all the markings of a career-defining piece.”

Spofford is being represented by high-powered attorney Howard Cooper with the Boston firm Todd & Weld. Jayme Simoes, a communications consultant with NHPR, declined to comment on the lawsuit, saying the public radio station had not yet been served.

“NHPR has not been served with a lawsuit and cannot comment on a suit they haven’t seen,” Simoes said.

Chooljian made waves when she reported in March that Spofford sexually harassed multiple women. The accusations included at least one sexual assault Spofford committed on a former Granite State Recovery Centers employee.

Spofford is a big, and potentially attractive, target for the left-leaning media outlet. Politically connected to Gov. Chris Sununu, Spofford’s drug abuse recovery centers became the largest recovery facilities in New Hampshire. According to Chooljian’s reporting, Spofford even counseled Sununu on the response to New Hampshire’s opined epidemic.

“Sununu championed Spofford, saying he is ‘one of the first guys I’ll pick up the phone to’ for advice about responding to the opioid crisis,” Chooljian wrote.

Spofford sold Granite Recovery Centers to BayMark Health Services, a Texas-based treatment company, last year. The sale price was not disclosed.

Spofford’s lawsuit claims that one of the sources Chooljian relied on, former GSC employee Piers Kaniuka, retracted his statements that linked Spofford to the abuse. That retraction has gone unreported by NHPR, according to the lawsuit.

“Specifically, I am concerned with your use of my statement comparing Mr. Spofford to Harvey Weinstein and my statement that Mr. Spofford should be prosecuted. At the time I made those statements to Ms. Chooljian, I naively assumed that I would have been provided an opportunity to vet any statements I made, and to provide permission for them to be used, prior to their publication as part of the article,” Kaniuka wrote to NHPR’s board in May. “I regret making those statements. I did not have any direct personal knowledge concerning any sexual abuse, misconduct, or other inappropriate behavior by Mr. Spofford with employees, clients, or former clients.”

According to the lawsuit, “Kaniuka was one of only four on-the-record sources identified in Chooljian’s reporting. Of those four, Kaniuka was the only one who had known Eric for nearly two decades. Two of the others had been acquainted with Eric as employees of GRC for less than three months each, and one had never even met Eric.”

Since Kaniuka wrote that letter to NHPR, the retraction has been suppressed by the radio station, according to the lawsuit.

“NHPR instead has decided for its readers and listeners that Kaniuka’s statement is irrelevant to Chooljian’s reporting about Eric. Yet NHPR knows the opposite is true,” the lawsuit states.

The motivation behind the story is money and ambition, according to the lawsuit. NHPR has used its Spofford coverage to seek donations and corporate sponsorships while Chooljian used it to get a job with a national media outlet.

“On information and belief, taking down Eric became a means to Chooljian’s end goal: to join a national news organization,” the lawsuit states. “On information and belief, NHPR was depending on Chooljian’s piece to aid its fundraising efforts this year. If Chooljian could deliver reporting that took down someone NHPR viewed as a prominent figure in the state, that would garner national attention and greater visibility to donors nationwide.”

Spofford’s lawsuit even accuses Chooljian and NHPR of trying to link him to a case of vandalism at her home.

“A reporter’s current and former homes in Melrose, Mass., and Hampstead, N.H., were vandalized early in the morning of Saturday, May 21, police said. In Melrose, a person spray-painted the words “Just the beginning!” in red on the home, threw a brick through a window and was seen running away,” the NHPR report states.

The report quotes Melrose Police Chief Michael Lyle who connected the vandalism to Spofford.

“I would certainly think [Spofford] may be interviewed by the authorities. He may have some information that might support a case. It would be too early to say he would be a person of interest,” Lyle said. “After the article came out, all this trouble started for the reporter or the news organization. At some point [investigators] may have a conversation with him.”

Spofford’s lawsuit takes issue with his even being mentioned in the story about the vandalism, saying it was part of an effort to divert the public’s attention away from the Kaniuka retraction.

“The NHPR defendants knowingly weaponized a conspiratorial connection between Eric and the alleged vandalism as a means for the NHPR defendants to deflect from their suppression of the Kaniuka retraction. There was not a scintilla of evidence connecting Eric to the alleged vandalism—the alleged vandal was caught on camera and was very obviously not Eric,” the lawsuit states.

Barrington Voters Reject Firing Town Officials Over 2A Tactical

Hundreds of Barrington residents showed up Saturday for a special deliberative session designed to fire Town Administrator Conner MacIver and Town Treasurer Peter Royce and instead opted to support the two officials. 

The man behind the deliberative session, owner of 2A Tactical Rob Russell, wanted to get rid of MacIver and Royce, saying Royce improperly used his town potion to target his business with MacIver’s knowledge.

Barrington uses a two-step process for town meetings. The first is a deliberative session in which the articles are debated and can be changed. It is followed by a ballot vote. Russell spent months gathering signatures for a special town meeting with a single warrant article, firing MacIver and Royce.

At Saturday’s deliberative session, Select Board member Joyce Cappiello successfully pulled a 180 on Russell, amending the article to support the two town employees instead of removing them. The re-worded article now reads, “To see if the town will vote to encourage the select board to continue the employment of Conner MacIver and Peter Royce in their current positions with the town of Barrington and to recognize the many contributions the two have made to the town throughout their tenures.”

It was a major reversal just months after the town attorney reprimanded Royce for improperly using his town email to target the local small business and its owner.

Russell said Sunday he was gratified that so many voters showed up to hear out his arguments, even if he didn’t get his desired result.

“Yes, having my warrant article re-written was disheartening. But it’s part of the process,” Russell said. “And seeing 250 people show up for a deliberative session that I am told normally has less than 50 people was inspiring.”

Russell still plans to run for a seat on the select board in the spring.

Russell is a retired military veteran who runs 2A Tactical out of his Tolend Road home. He started the effort to oust MacIver and Royce after discovering Royce was orchestrating a campaign to shut down his business.

Russell originally opened it as a home business.  But as it took off, so did the traffic in his residential neighborhood, and so did the complaints. 

Russell soon found himself embroiled in a lawsuit as the town alleged zoning ordinance violations. However, after Russell prevailed during two zoning board of adjustment hearings, the town dropped the lawsuit last spring.

Royce is the part-time town treasurer and lives near 2A Tactical. Royce used his position and knowledge of town operations to actively lobby against Russell’s business, according to documents Russell uncovered. At one point, Royce used his town email to communicate with MacIver about the case. After prodding, MacIver told Royce that people could be encouraged to file complaints against Russell if they have concerns.

Royce allegedly organized people throughout the neighborhood to file complaints against Russell’s business, landing Russell before the ZBA, the select board, and the courts.

According to a letter from the town’s law firm to MacIver, Royce’s use of his official town email crossed the line.

“Mr. Royce is the town’s appointed treasurer. Of course, he does not lose his rights as a citizen by assuming such a position. He may contact code enforcement with concerns just as any other citizen may, and code enforcement treats his complaints no differently than those of other citizens. I agree that Mr. Royce should not be using his town email for any communications in his personal capacity, and he has been so counseled,” wrote attorney Laura Spector-Morgan to town officials.

Select Board Chair Dan Mannschreck told NHJournal that Royce got a talking to about his improper use of town email. Royce is paid about $7,000 a year for his job. MacIver was paid more than $78,000 last year.

Manchester Schools to Parents: We Have No Duty to Inform You of Students’ Trans Activity

In legal filings made Wednesday, the Manchester School District (MSD) declared it has no “duty” to inform parents when their children are engaged in transgender behavior or experiencing transgender ideation or dysmorphia. 

The school district made this claim in a court filing responding to a lawsuit brought by a student’s mother over the school system’s transgender policy. MSD insists the mother has no right to know if her child is living a trans identity at school, and it wants her lawsuit dismissed.

“(T)his motion can be easily resolved by answering one discrete question: Do school districts have a legally enforceable duty to inform parents when a student uses a name or gender pronoun different than that assigned at birth? Because the answer to this question is no, the Complaint should be dismissed,” Manchester’s motion states.

The mother, who is going by Jane Doe in the lawsuit, claims her child started expressing a different gender identity at school from the child’s identity at birth, and that fact was kept secret from the child’s family.

According to Jane Doe’s lawsuit, she found out last fall that her child was using a different pronoun and gender identity at school. The mother spoke with school staff, including the guidance counselor. The mother made it clear she wanted her child to be called by the name and pronouns her child was born with while in school, according to the lawsuit.

Even though the staff she spoke to initially agreed, the mother soon got an email from the school principal stating that due to the district’s policy, it would not be possible. The principal stated the district’s policy requires school staff to keep such matters secret from parents if the child wants them kept secret, according to the lawsuit. Even if the staffers agree to use the child’s biological gender identity when speaking with the mother, they would be obligated to lie and not tell the mother if the child wished to be identified as something else, according to the lawsuit.

According to the district’s motion, the mother has no rights when it comes to the child’s identity at school.

“Whatever the scope of a parent’s rights vis-a-vis their transgender or gender-nonconforming children, they do not include the right to force a school district to act as a conduit for the parent’s exercise of those rights in this fashion,” the motion states.

The district’s motion to dismiss claims that this policy does not interfere with the parent-child relationship, since the mother is still free to have the child identify as their birth gender at home.

Shannon McGinley, executive director at the conservative organization Cornerstone, said school districts should not have the power to override parents and their values when it comes to raising their children.

“Schools are not courts of law and should not have the authority to unilaterally deprive people of recognized legal rights. This is a government entity that is increasingly being given vast and unquestioned power over our lives and the lives of our children,” McGinley said.

Two weeks after Jane Doe’s lawsuit was filed, the Manchester Board of Education tweaked the transgender policy — though not by much. The original policy read: “School personnel should not disclose information that may reveal a student’s transgender status or gender-nonconforming presentation to others, including parents and other school personnel, unless legally required to do so or unless the student has authorized such disclosure.”

The board took out the phrase “including parents and other school personnel,” and added a line stating, “Nothing herein shall be construed to change the obligation of the school to take action when student safety is concerned.”

The changes did not assure Jane Doe that her rights as a parent would be recognized, and the lawsuit continues in the Hillsborough Superior Court – North in Manchester. McGinley said it was one of the reasons Cornerstone backed the failed Parents’ Bill of Rights in the legislature.

“The strong opposition faced by the Parents’ Bill of Rights this session proved that public schools in New Hampshire have an established practice of withholding information from parents about their minor children’s gender and sexuality,” McGinley said. “The justification for this is that, since some parents are abusive, all parents must be presumed guilty. But that’s not how we operate in any other area of parents’ rights.”

The bill was defeated after Gov. Chris Sununu, Attorney General John Formella, and others expressed concerns about the legality of the proposal.

MSD’s actions put it at the center of the national debate over parental rights. Progressive activists reject the widely-accepted view, going back to British common law, that parents should have the final say in decisions over their children.

“Schools have a long-standing tradition and legal obligation to inform parents of their children’s medical and behavioral issues and to honor their decisions about what’s best for their kids,” wrote Luke Berg for the American Enterprise Institute. “Yet, prompted by a well-organized lobby, many school districts have decided that minor students can change gender identity at school without any parental involvement.”

Berg, a former assistant attorney general at the Wisconsin Department of Justice, says this gets the legal standards all wrong.

As any parent of school-age kids can attest, schools require parental consent for just about everything, even seemingly insignificant matters: sports, field trips, extracurricular activities, alternate education programs, and taking any kind of medication at school,” Luke wrote. “Yet in the past few years, schools nationwide have carved out an exception to this expectation for one major and controversial issue: social gender identity transitions. Unbeknownst to many parents, schools are adopting policies that allow students to change gender identity at school, adopt a new name and pronouns, and even begin using opposite-sex facilities, without parental notice or consent and sometimes in secret from parents.

“This shift is happening under most parents’ radar— until it affects their children, when it’s often too late to fight.”

Youth Detention Center Victims Reject Deal, Demand Trial

Lawyers representing hundreds of Sununu Youth Detention Center abuse claimants on Tuesday asked a judge to lift the court-imposed stay on litigation and let the victims pursue civil trials against the state.

In a new filing in the Merrimack Superior Court in Concord, attorneys David Vicinanzo and Rus Rilee accuse Attorney General John Formella of stalling the case so the state can pay as little as possible.

“Plaintiffs acknowledge that the State’s delay strategy and its related goal – paying as little compensation to as few victims as possible – is legally allowable to a certain point. But that point has come and gone. After decades of suffering in silence, it is time for Plaintiffs to be heard and receive justice,” they wrote in their motion.

The motion filed Tuesday is another sign that the victims are unhappy with the $100 million settlement offer approved by the legislature, and many do not plan to take the deal offered by the state. Instead, they want to go to trial.

Vicinanzo said Tuesday the list of more than 600 victims who filed suit continues to grow as more survivors come forward. The filing indicates there could be thousands of victims.

This year the state legislature approved a bill to pay out $100 million in settlements to the survivors. Still, Vicinanzo and others criticized the bill, saying it caps the settlement amounts, and effectively excludes many survivors from being able to obtain any settlement money.

“The New Hampshire legislature’s response to this tragedy has also been slow and underwhelming. It was not until late 2021 that the State legislature began discussions on a bill seeking to redress the harm suffered by the survivors. The bill that was ultimately signed into law last month falls well short of the “victim-centered, trauma informed” legislation that the Attorney General and legislators had promised and forces survivors to give up their rights for the mere chance to explore their options in this process,” they wrote in Tuesday’s motion.

David Meehan first came forward in 2017, telling State Police about the abuse he suffered at the center. Since then, hundreds of men and women have come forward to say they suffered sexual and other forms of abuse as children at the hands of some 150 staffers from 1960 to 2018, according to the lawsuit. That abuse includes gang rapes, being forced to fight each other for food, and being locked in solitary confinement for weeks or months.

“(T)hrough the actions of the Defendants in these matters, Plaintiffs were robbed of their childhoods and left with lifelong physical and emotional scars. The stories these individuals tell reveal unimaginable wrongs, including brutal rapes, forced abortions, broken bones, and weeks on end of isolation where individuals were at times shackled and forced to urinate and defecate, without a toilet, in the same room in which they slept,” they wrote.

The state has so far charged several former employees for their roles in the alleged abuse while simultaneously pursuing a settlement agreement. Vicinanzo and Rilee state that then-Attorney General Gordon MacDonald initially responded to the victims appropriately, pursuing a criminal investigation against the alleged abusers while negotiating a civil settlement. It was during the initial state response that Meehan and others agreed to stay their cases.

After MacDonald became Chief Justice of the New Hampshire Supreme Court in March of 2021, Formella replaced him as attorney general. The lawyers blamed Formella for what they alleged was a change in the state’s handling of the claims.

“Unfortunately, Plaintiffs detected a change in tenor and direction from the Attorney General’s Office following a change in leadership with Attorney General MacDonald’s appointment and subsequent confirmation to the New Hampshire Supreme Court in early 2021. Since that time, discussions with the Attorney General stalled, and the State began to adopt tactics seemingly calculated to delay, if not outright deny, justice for the survivors,” they wrote.

Michael Garrity, the director of communications for the Department of Justice, takes exception to that characterization of Formella’s response.

“Any suggestion that the Attorney General’s Office is ‘dragging its feet’ or ‘trying to pay out as little as possible’ is categorically false. Nothing could be further from the truth. We have been attempting to work with plaintiffs’ counsel in good faith and are disappointed by this inflammatory and unnecessary filing,” Garrity said,

The abuse should not have come as a surprise, according to the filing. It was well-known in the 1980s. Then-Attorney General Tom Rath warned leaders that the abuse at the detention centers would end up costing the state.

“There is no question that the potential exists for the YDC (Youth Development 3 Center) to be the next Laconia [State School] in terms of litigation,” Rath said in 1980, the Associated Press reported.

The Laconia State School housed mentally challenged people until the revelations of the ongoing neglect and abuse revealed in the 1970s. A 1979 class-action lawsuit found that the school that was supposed to be training and educating mentally challenged people was instead “a human warehouse where residents were often left alone to sit naked in their feces and urine. Staff prodded residents with hatpins, burned them with cigarettes, and kicked them. They also shut off the water at night, forcing anyone who was thirsty to drink from the toilets,” according to The Boston Globe.

Rath told the Associated Press that the state was deficient in dealing with the abuse within the juvenile justice system.

“[I]f there is an area where we have been deficient in this state, it has been in this regard,” he said at the time.

Sununu Center Victims Unhappy With $100 Million Deal

Despite offering $100 million to the hundreds of Sununu Youth Detention Center abuse victims, it looks like New Hampshire will still end up in court. 

Lawyers and victims expressed frustration and anger at the deal, approved by the state Senate late last week.

“I should never have put faith in the state to create a fair settlement process. They already proved they don’t care,” Dwayne Underwood, one of the victims said.

There have been hundreds of allegations of misconduct and abuse against staff at what was then called the Youth Development Center between 1963 and 2018. That abuse included gang rapes, being forced to fight each other for food, and being locked in solitary confinement for weeks or months. The center has been under investigation since 2019 and is scheduled to shut down in 2023.

David Vicinanzo, an attorney with Nixon Peabody, said his firm has filed 450 lawsuits against the state over the Sununu Center abuse and said 100 more lawsuits will be filed soon. Vicinanzo plans to push forward with the lawsuits instead of taking the settlement.

“We are full speed ahead preparing the cases for trial or mediation, which may be appropriate depending on whether the state decides to be fair or continues to shortchange and disrespect the victims,” Vicinanzo said.

Anthony Carr, who represents Underwood, said the victims continue to be ignored.

“This bill will not bring justice to the minors who were abused under the state’s care. It’s unfortunate that the victims of the Sununu Youth Services Center and the Youth Detention Center and their advocates were not consulted when creating this fund. The result is a process that is not victim-centered and, speaking for the many victims we represent, will not be widely used, if at all,” Carr said.

Both Carr and Vicinanzo would rather see the legislature make changes to the bill, especially the way the settlement defines abuse. Under the law as passed, survivors like Underwood would be frozen out as their experience would not be considered abuse.

“I was forced to undress regularly in Wilkins Cottage and expose myself to the guards for no good reason. I was forced to swim naked by the guards both on and off property. One time, a guard took me by van to a campsite by a river and he made me swim naked with him,” Underwood said. “This has caused me great trauma over the years, and I just don’t see why the state would not recognize what I went through as sexual abuse.”

The law also includes a maximum $1.5 million settlement cap for victims, depending on the abuse suffered, and contingent on the state’s definition of abuse. It is another point the lawyers want to be changed.

Vicinanzo has been critical of Senate President Chuck Morse (R-Salem). Vicinanzo said Morse has refused to meet with victims.

“Many of the victims pleaded with Senate President Morse for a short meeting weeks ago so they could share their pain personally with him before he managed this process to the vote he wanted … He responded that he was ‘not interested’ in meeting with them,” Vicinanzo said. “Unfortunately, he is not the only political leader who still has no empathy for victims or understanding of their suffering. The child victims of the state have been ignored and dehumanized for years, so the senator’s cold shoulder is nothing new.”

Morse, who is running in the crowded GOP primary to unseat incumbent U.S. Sen. Maggie Hassan, did not respond to requests for comment.

Vicinanzo said the state needs to reckon with the victims.

“After being ignored, disbelieved, and disrespected by the state for decades, we are a critical mass right now that the state has to take seriously and treat with decency and fairness,” he said.

So far, the New Hampshire Attorney General’s Office brought more than 108 charges against 11 former staff members for acts committed against 20 victims.

In DC, Dems Go Maskless to SOTU. In Concord, NHDems Go to Court to Fight Return to House

On Monday, House Minority Leader Renny Cushing (D-Hampton) asked a federal court to rush a ruling on House Democrats’ lawsuit to block a return to regular session in the State House chamber.

On Tuesday, Democrats crowded into Congress, maskless, to cheer on President Biden’s State of the Union speech.

Granite State Republicans took note.

“I saw a headline this morning that the [U.S.] Capitol’s attending physician notified Congress that masks are no longer required ahead of Biden’s State of the Union address,” New Hampshire Speaker of the House Sherm Packard (R-Londonderry) told New Hampshire Journal Tuesday afternoon. “So we’re talking about putting hundreds of people — members of Congress, Supreme Court justices, cabinet officials, and all the guests — packing them all into a room together, and Democrats say that’s all right. But we can’t go back to the [N.H. House] chamber?

“The Democrats keep saying ‘listen to the science.’ Well, we’re the ones listening to the science and the latest CDC guidelines. They aren’t,” Packard added.

The House Democrats’ lawsuit seeks remote options for legislators unwilling to return to in-person work. Since the start of the pandemic, House members have met in sports complexes, the University of New Hampshire and the convention center at the Manchester DoubleTree by Hilton.

Lawyers representing Cushing filed a motion on Monday in the First Circuit Court of Appeals in Boston seeking an expedited ruling in Cushing’s lawsuit against Packard. Cushing wants legislators to be able to log on for the House session remotely. Packard has rejected this request and, thus far, has prevailed.

The appeal was heard in the federal appeals court in September, and no ruling has yet been made. Since September, however, Gov. Chis Sununu has effectively called for an end to pandemic restrictions, and the Centers for Disease Controls have adjusted the masking requirements.

The New Hampshire House is now set for its first session in Representatives Hall on March 10, the first time that House members have gathered in Concord since the start of the pandemic.

Cushing wants the federal appeals court to issue a ruling before the state of the session on March 10, claiming members have been risking their health for months because of Packard’s refusal to allow remote access to lawmakers.

“Some of the Plaintiffs have chosen to risk death by attending committee meetings and House sessions. Others have heeded the advice of the CDC and their doctors and chosen to not spend hours inside with unmasked, unvaccinated people. None of the Plaintiffs should have ever had to make a choice between the risk of death and their duty to their constituents. None of them should have to expose themselves to the extraordinarily dangerous conditions in Representatives Hall,” the motions filed Monday states.

Cushing did not respond to a request for comment on Tuesday. Packard has said the return to Representatives Hall in Concord will not be a problem.

“We have managed smartly throughout the pandemic with many risk-mitigation measures in place to ensure the people’s business continues to get done,” Packard said. “We’re now in a different phase of the pandemic, and without some return to normalcy, we risk long-lasting damage to this historic institution and its traditions.”

According to Cushing, holding the session in the State House will mean many members of the legislature will not be able to take part due to health concerns, and their constituents will be denied their representation. This despite a year of widely-available vaccinations and boosters, in a state with one of the lowest rates of hospitalization and death in the nation.

“You’d think, with the Biden White House and the Congress going maskless and the CDC’s new guidance, that Democrats would be ready to move on,” Packard said. “Because it’s time. It’s time to get back to the normal way of doing things. It’s been two years. We can’t be cowering in a corner and afraid of going out and doing anything. We’ve got to get back to normal life.”

Dartmouth Med Student Sues Over Sex Assault

A former student at Darmouth’s Giesel School of Medicine says in a new lawsuit that he was thrown out after being sexually assaulted. And he claims he was told he lacked credibility because he had been drinking at the time he was attacked.

The student, going by John Doe in the lawsuit filed in the United States District Court in Concord, says he was assaulted by his male roommate while nearly black-out drunk, but the roommate was first to go to the school to claim he had been assaulted by Doe while he was asleep.

Among his claims, Doe’s lawsuit asserts his version of the story — that he was the victim — was discounted by the school’s investigator because Doe had been drinking at the time of the assault. The lawsuit claims that is not the case when the victim is a woman.

“Dartmouth has credited intoxicated cisgender female students alleging sexual assault against cisgender male students when the female student could not remember specific details of the alleged assault either at all or at least could not remember details of the alleged events in a linear fashion in similar circumstances, whereas the investigator in this case held the same facts against Doe’s credibility, resulting in a finding that Doe was responsible against the preponderance of the evidence,” the lawsuit states.

Doe names his former roommate in the lawsuit, but that name is being not being reported at this time given that both men are alledging to be sexual assault victims.

Doe claims in his lawsuit, prepared by attorneys with Shaheen & Gordon, that he and his roommate started spending more time together during the 2020 COVID lockdowns on campus. This invariably led to heavy drinking, according to the lawsuit, and awkward encounters.

On the night of July 11, 2020, the pair were in their apartment drinking. 

“After approximately six or seven beers, (the roommate) challenged Doe to wrestle. (The roommate) pinned Doe and said something like, ‘See, I’m the alpha. You’re the beta,’” the lawsuit states.

Later that night, the two were watching movies and Doe passed out from drinking, according to the lawsuit. He awoke to find the roommate was assaulting him, according to the lawsuit. The sexual activity ended with Doe vomiting and the roommate claiming that Doe started it while he was asleep. 

Doe said in the filing he reacted that night by contemplating suicide. He eventually went home to his family in another state and took a break from school. In early 2021, Doe was diagnosed with Post Traumatic Stress Disorder and has received treatment.

Doe made plans to go back to Dartmouth to finish his studies and told one school friend he was considering bringing a complaint against his former roommate. When the roommate found out Doe was returning to school he filed a complaint about the sexual assault, according to the lawsuit. 

Dartmouth’s Associate Vice President for Communications Diana Lawrence declined to comment on the lawsuit.

Legislative and Policy Director for the Foundation for Individual Rights in Education Joe Cohn said schools can have a difficult path when dealing with sexual assault accusations that include some level of intoxication. 

Where alcohol or drugs are involved, reaching sound determinations about credibility is particularly difficult,” Cohn said. “It’s improper for institutions to have a categorical rule or practice of accepting a party’s account as truth without considering the possibility that their intoxication or incapacitation compromises the accuracy of their testimony. However, it is similarly improper to have a categorical rule or practice of disregarding the testimony of intoxicated parties or witnesses.”

A recent change to New Hampshire state law requires that all students and employees on college campuses be trained to the role drugs and alcohol play in an individual’s ability to consent to sex. 

Cohn said that because many sex assault cases involve disputes over credibility, colleges must afford the ability for people to cross-examine witnesses.

“Courts, including the United States Court of Appeals for the First Circuit, are increasingly recognizing that campus procedures must offer the parties meaningful opportunities to engage in cross-examination. Federal Title IX regulations require the same,” Cohn said.

No Deal Likely in Exeter “Two Genders” Lawsuit

A Superior Court judge has ordered mediation in the lawsuit brought after Exeter High School officials punished a Catholic student for saying there are two genders.

However, Ian Huyett, the attorney for the student and his family, says a settlement is unlikely given Exeter’s current stance, expressed in a recent letter to the school community.

“Given the contents of the letter that (Superintendent) David Ryan sent out on Wednesday, I don’t anticipate that they’ll have any interest in doing that,” Huyett said. 

Ryan sent the letter last week, doubling down on the district’s stated embrace of diversity after Judge David Ruoff issued the scheduling order, which stipulates the two sides attempt to settle the case through an Alternative Dispute Resolution.

“Despite our best intentions to create a safe and welcoming environment for all in our community, we have members in our community who continue to experience feelings of hate and disrespect,” Ryan wrote. “We are a community of acceptance. This means we welcome you with all of your uniqueness, no matter your race, religion/spiritual beliefs, sex, age, national origin, sexual orientation, gender identity, ability/disability, or family structure.”

The student, known in the lawsuit as M.P., claims he was disciplined for expressing his views, informed by his Catholic faith, that there are only two genders. M.P. claims he expressed these views outside of school and off the football field.

Exeter High School and SAU 16 officials struck back saying M.P. was disciplined for being a bully, not for expressing his religious views. The district’s attorney, Michel Eaton claims M.P. is not the victim of religious discrimination. Instead, he was benched for one game by his coach for violating the team’s code of conduct. The benching had nothing to do with the school’s transgender discrimination policies, according to Eaton.

“M.P.’s coach did not decide to bench M.P. based upon M.P.’s opinion that there are only two genders, nor would he. Rather, M.P. was benched for using crude, inappropriate, and disrespectful language while communicating with Student Doe. This behavior was consistent with M.P.’s documented history of bullying and inappropriate behavior, including such behavior on the school bus and such behavior targeted at Student Doe specifically,” Eaton wrote in the district’s response to the lawsuit.

Student Doe, who is not transgendered, is the student with whom M.P. had a reportedly heated conversation about gender and sexuality while on the school bus. This conversation later continued via text messaging, according to court records. Student Doe, in turn, reported the conversation to M.P.’s coach, Eaton wrote.

“M.P.’s coach took what he believed to be an appropriate and limited remedial measure to teach and ensure the respect that is expected of all student athletes,” Eaton wrote.

Huyett claims in the lawsuit that M.P. was punished for expressing his opinion, not for violating any rule.

“M. P. did not harass or demean any student, but simply expressed his views on a contentious cultural issue,” Huyett said in a statement.

Huyett is an attorney with Cornerstone, a conservative Christian organization. While Cornerstone is defending M.P.’s First Amendment rights in this case, the state’s ACLU has been silent. Instead, New Hampshire’s ACLU is part of a federal lawsuit, along with Exeter’s Andres Mejia, against the state over the so-called “banned concepts” law. Mejia is the director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, and a board member of the Black Lives Matter Seacoast organization.

The anti-discrimination law challenged by the ACLU and Mejia, signed by Gov. Chris Sununu as part of the state budget, prohibits students from being taught that “a person, because of their membership in one or more identified group(s), is inherently either: (1) racist, sexist, or oppressive, consciously or unconsciously or (2) superior or inferior to people of another identified group.”

Youngkin Follows NH’s Lead with Anti-CRT ‘Tip Line’

Virginia’s newly elected Republican Gov. Glenn Younkin is borrowing a page from New Hampshire by setting up an email tipline for parents to report on teachers who use Critical Race Theory (CRT) curriculum in the classroom.

Youngkin, who won an upset victory for governor in a state Joe Biden carried by 10 points a year earlier, campaigned hard against the use of CRT in Virginia classrooms. On his first day in office, he signed an executive order banning “divisive concepts” like CRT from the state’s classrooms.

He told media this week the email tipline allows parents to report teachers “behaving objectionably.”

“We’re asking for folks to send us reports and observations that they have that will help us be aware of things like ‘privilege bingo,’ be aware of their child being denied their rights that parents have in Virginia. And we’re going to make sure we catalog it all,” Youngkin said. “This gives us a great insight into what’s happening at a school level, and that gives us further ability to make sure we’re rooting it out.”

“Privilege bingo” is an actual classroom exercise used as part of a CRT-based curriculum to highlight racial differences among students and label certain children “privileged” based on race, regardless of their actual circumstances. The Fairfax County, Va. public school system apologized for using it after parents found out about the classroom exercise and complained.

Youngkin’s moves mimic those taken by the New Hampshire Department of Education. Last fall, Commissioner Frank Edelblut set up a website that allows Granite State parents to report violations of the state’s new anti-discrimination law. New Hampshire did not directly ban the teaching of any specific concept but instead banned teaching that any group was superior or inferior based on race, creed, or sexual orientation.

“This website in support of the commission provides parents with an online site to address concerns that their child may have been discriminated against,” the DOE said in a statement when the site was launched. “Parents, guardians, and teachers are able to submit a public education intake questionnaire that will be reviewed by a [state Human Rights] commission intake coordinator to determine if there are grounds to file a formal complaint.”

Edleblut did not respond to a request for comment on Tuesday, but his staff indicated that any complaints filed through the website would go directly to the state’s Human Rights Commission (HRC). Edleblut has said that by going to the HRC, the due process rights of any teacher accused of violating the law will be protected.

Ahni Malachi, the commission’s executive director, refused to say Tuesday how many cases, if any, had been referred to her office since the website was published. She did say that no cases have been fully adjudicated at this time. But it is not clear if there are any cases pending before the commission, are still in the investigative stage, or are heading for mediation. The commission’s website lacks transparent information on the number of cases handled, and there is no public data available on the website beyond 2018 numbers.

NHJournal has reported on multiple Granite State school systems, including Manchester, Laconia, and Litchfield, that were found to be using CRT-inspired content.

New Hampshire’s anti-discrimination reporting system caught flak from teachers unions after it was learned a group of activists, Moms For Liberty, was offering a $500 bounty for the first verified report made to the commission. While Edleblut distanced himself from the bounty scheme, the heads of New Hampshire’s two teachers unions accused him of engaging in dangerous vigilantism.

“Totally innocent teachers could lose their teaching license over claims that are not backed up by any evidence. Edelblut has declared a war on teachers, a war that the overwhelming majority of New Hampshire parents will find repulsive,” AFT-New Hampshire President Deb Howes said.

Meg Tuttle, president of the NEA-NH, said Edleblut was keeping New Hampshire children from learning about injustice.

“Politicians like Commissioner Edelblut are using the dog whistle strategy of distraction, division, and intimidation in their efforts to dictate what teachers say and block kids from learning our shared stories of confronting injustice to build a more perfect union,” Tuttle said.

To date, no bounty has been paid, according to Moms For Liberty. Both the AFT and NEA have since filed independent federal lawsuits against the state over the anti-discrimination law.

The lawsuits incorrectly describe the law as banning the teaching of “divisive concepts.”