N.H. Supreme Court Backs School Counselor on Abortion Advice to Student

By Mark Walsh — April 08, 2016 2 min read
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New Hampshire’s highest court has ruled that a school district must reinstate a high school guidance counselor who was non-renewed after she clashed with her principal about how to handle a student’s desire to terminate her pregnancy.

The state Supreme Court largely ruled in favor of counselor Demetria McKaig, who disagreed with her principal at Farmington High School about how to help a 15-year-old student’s interest in getting an abortion.

In 2012, the girl came to McKaig, who suggested she tell her mother. But the girl and her boyfriend did not want to reveal the pregnancy to her mother, so McKaig began researching the girl’s options under state law. New Hampshire has a law requiring that parents be notified of an abortion by a minor child, but also an option for the minor to get a judicial bypass of the notification requirement.

McKaig also met with her principal, who isn’t named in the state high court ruling, The principal wanted to inform the girl’s mother of the pregnancy, but McKaig disagreed, asserting that the student had the right to keep the pregnancy confidential. The counselor consulted an American Civil Liberties Union lawyer, who expressed the view that the state judicial bypass law gave the student the right to keep private her pregnancy and her contemplation of terminating it.

The student eventually went to court to obtain a temporary restraining order barring the principal from informing her parents of the pregnancy. The principal abided by the TRO. It’s not clear from court papers whether the student went through with having the abortion.

Four months after the incident, McKaig received a notice of nonrenewal from the superintendent of her district. She later received a list of reasons: insubordination, breach of confidentiality, and neglect of duties.

The confidentiality charge related to the fact that McKaig had provided the ACLU lawyer with some information about the student, including her initials, age, and grade, as well as the fact that she was pregnant.

The local school board upheld the nonrenewal on two of the grounds: insubordination and breach of confidentiality. McKaig appealed to the state board of education, which reversed her non-renewal, but provided no remedies, such as reinstatement to her job.

In a 4-1 decision on April 7 in Appeal of Farmington School District, the New Hampshire Supreme Court ordered McKaig reinstated to her job. The state high court agreed with the state board that the counselor was not insubordinate on the basis of failing to go up the chain of command before aiding the student on her options for a judicial bypass.

The court said Farmington school board policy supported the state board’s conclusion that “to avoid insubordination, McKaig was required only to discuss her disagreement with the principal, which she did.”

Moreover, the court said, the state board had observed that “McKaig acted consistently with policies and practices applicable to her role as guidance counselor.”

The court also agreed with the state board that McKaig did not breach student confidentiality by passing along limited information about the student.

Justice Robert J. Lynn wrote a lengthy dissent, arguing that the local school board’s decision against renewing McKaig was correct.

“Absent some showing that the principal’s decision was unlawful or wrongful, this case is no different than any other disagreement between a supervisor and an employee,” Lynn wrote.

[Hat Tip to How Appealing.]

A version of this news article first appeared in The School Law Blog.