M.G.L. c 71 Sec 37D

Section 37D. As used in this section, sections thirty-seven C, I, and J, sections one I through one K of chapter fifteen, and section twelve A of chapter seventy-six, the following terms shall, unless the context requires otherwise, have the following meanings:

“Racial imbalance”, the condition of a public school in which more than fifty percent of the pupils attending such school are non-white.

“Racial balance”, the condition of a public school in which more than thirty percent but not more than fifty percent of the pupils attending such school are non-white.

“Racial isolation”, the condition of a public school in which not more than thirty percent of the pupils attending such school are non-white.

“Exempt school”, a public school to which, prior to January first, nineteen hundred and seventy-four, the passing of a competitive examination was a condition of entrance; provided, however, that the school committee or regional district school committee having jurisdiction over such school shall, under the supervision of the board of education, establish and maintain an affirmative action program to recruit and assist non-white students to enter and to remain in attendance at such school.
The school committee of each city, town, and regional school district shall annually, at such time and in such form as the commissioner shall determine, submit to the commissioner statistics sufficient to enable a determination to be made of the percent of white and non-white pupils attending all public schools and attending each public school under the jurisdiction of each such committee. Whenever the board of education, in this section called the board, finds that racial imbalance exists in a public school, it shall in writing notify the school committee or regional district school committee having jurisdiction over such school that such finding has been made.

Any non-white pupil attending any public school in which racial imbalance exists shall have the right to be transferred to and to attend any other school, except an exempt school, of his parents’ or guardian’s choice for his grade level and under the jurisdiction of the same school committee or regional district school committee if racial isolation exists in such other school; and any white pupil attending any public school in which racial isolation exists shall have the right to be transferred to and to attend any other school, except an exempt school, of his parents’ or guardian’s choice for his grade level and under the jurisdiction of the same school committee or regional district school committee if racial imbalance exists in such other school. If a place is available for such pupil at such other school, such school committee or regional district school committee shall, forthwith upon receipt of written notice by his parents or guardian that they intend such pupil to exercise his right to be transferred to and to attend such other school, transfer such pupil to such other school. If no place is available for such pupil at such other school, such school committee or regional district school committee shall, upon receipt of such notice, formulate and, within the time limit established by regulations of the board, file with the board a plan to provide, within the same school year for which such notice is given, a place for such pupil at such other school and shall, within such time as may be prescribed by the board, implement either such plan as approved by the board or the mandatory plan of the board to provide such place and, when such place becomes available, transfer such pupil to such other school; provided, however, that the board may temporarily or permanently excuse such school committee or regional district school committee from implementing such plan or mandatory plan if an alternative place, satisfactory to the parents or guardian of such pupil, is available at another school to which such pupil may, as provided by this section, exercise his right to be transferred and attend, or if the board finds that there is other good cause to do so. Whenever a school committee or regional district school committee determines, in accordance with regulations of the board, that the number of places available at such other school is exceeded by the number of pupils exercising their rights to be transferred to and to attend such other school, the selection of particular pupils to be transferred to such places as are available shall be in accordance with regulations of the board, which regulations shall reasonably provide for priority for non-white pupils attending schools in which more than seventy percent of the pupils are non-white, without affecting the rights of such pupils not so selected to be transferred to and to attend such other school as provided by this section.

Any such plan so filed shall set forth in detail the proposed changes in existing school attendance districts, additions to existing school buildings, use of leased or portable facilities, changes in use of school buildings, and other measures to provide a place for such pupil at such other school. Any such plan shall take into consideration on an equal basis with reduction or elimination of racial imbalance the safety of pupils in their travelling between school and home. Any such plan may provide for voluntary cooperation by other cities, towns, or regional school districts in making facilities available or otherwise rendering assistance in implementing such plan. No change in any existing school attendance district shall be made pursuant to any such plan prior to a public hearing. Notice of the time and place of such hearing and of its subject matter shall be given by mail, postage prepaid, to the parents and guardian of each pupil affected by the proposed change and either by publication in a newspaper of general circulation in the city, town, or regional school district within which such attendance district lies once in each of two successive weeks, the first such publication to be not less than fourteen days prior to the day of such hearing, or, if there is no such newspaper, by posting such notice in a conspicuous place in the city or town hall of such city, town, or member towns of such regional school district for a period of not less than fourteen days prior to the day of such hearing. At such hearing any person, whether entitled to notice thereof or not, may appear in person or be represented by an agent who need not be an attorney.

The board shall adopt regulations for the administration of the provisions of this section relating to, but not necessarily limited to, determination of places available in schools, priorities for transfer and attendance, notification to parents and guardians of pupils of such pupils’ rights to transfer and attendance, reporting and publication of places available in schools, time limits for filing of plans to provide places for pupils in schools, consolidation of such plans for filing, time limits and schedules for implementation of approved or mandatory plans to provide such places, progress reports on such implementation, and affirmative action programs.

The supreme judicial and superior courts shall have jurisdiction in equity over actions commenced by the board or by or on behalf of any pupil to enforce the provisions of this section; provided, however, that in any such action commenced by or on behalf of any pupil to enforce his right, as provided by this section, to be transferred to and to attend any school, which action is concluded in favor of such pupil, the school committee or regional district school committee having jurisdiction over such school shall be liable to such pupil or the person commencing such action on his behalf for his costs and reasonable attorney’s fees.

MODERN DAY FACES OF RACISM IN NEW HAMPSHIRE

    

Joseph Nadeau

David Brock, Chief Justice

Linda Dalianis



James Broderick

James Duggan

                                   

“In A.J’s best interest I recommend that he attend the Burnham School in Haverhill (MA)….Furthermore, the issue of diversity is real.   A. J. would likely find it lonely being the only Black child in a school in NH.  He has a rich Black Heritage of which to be proud.  He can share with and learn from other children of his color and it can enhance his growing up years in numerous ways.  In Haverhill (MA), he has that opportunity far more that it exists in NH.” –Patricia Frim, Esq., Court Appointed Guardian ad Litem, 07/14/03 

The GAL shall be the representative for and of the best interest of the child or represented person. Rule 2.4.2. (a) Scope of Representation, New Hampshire Guidelines for Guardians ad litem.

The GAL shall not bring or defend a proceeding or assert or controvert an issue therein unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. Rule 2.6.1. Meritorious Claims and Contention, New Hampshire Guidelines for Guardians ad litem.

“Ultimately, the court finds that the most important factors are diversity and crime. Given the information presented on the issue of diversity...the Court concludes that the Burnham school in Haverhill (MA) would be the more appropriate placement for A.J.”- Marital Master Harriet J. Fishman- Case No. 02-M-0032 (Approved Judge Gerald Taube).  08/05/03

“No appeal, however, is declined except by unanimous vote of the court with at least three justices participating. No justice who considered this matter voted to accept this appeal. Accordingly, the appeal was declined. If any justice who considered this matter believed the appeal should have been accepted, this case would have been scheduled for briefing. Declined.  Brock, C.J., and Broderick, Nadeau, Dalianis and Duggan, JJ., concurred.  Case No.  03-0640, (Declining to hear appeal of Case 02-M-0032), 11/21/03)  The Respondent, citing pertinent facts, evidence and circumstances, offered proof that the weight of the evidence demonstrated that the GAL’s recommendation and Marital Master’s ruling on the school enrollment was not in the “best interest of the child.”  NH Justices denied the respondent’s appeal without opinion.

“A judge shall perform judicial duties without bias or prejudice.  A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not permit staff, court officers and others subject to the judge’s direction and control to do so.” Canon of Ethics, Canon 3 (5)

“Calls to the Portsmouth Family Division were referred to the Family Division offices in Concord. Judge Edwin W. Kelly, administrative judge for the Family Division, said he was unaware of the protest and had no personal knowledge of Holder’s case. Kelly said that race is never used as a determining factor in custody decisions. “Absolutely not. This is the United States of America,” he said.  Larry Clow, “The Wire, Newton Man protests at Portsmouth Court, 9 Nov. 2005.  (Receipt of a sworn written complaint, with supporting documents, was acknowledged by Family Court Administrator Gina Belmont Apicelli of Judge Kelly’s Office in March 2004 alleging racial bias by Fishman, Frim and Taube).  Family Court Division delayed investigation of the complaint for 3 years, then dismissed the complaint claiming no evidence of GAL misconduct.

“Because Holder’s claims are so facially deficient, a detailed recitation of the facts is unnecessary.  For purposes of this discussion, it is sufficient simply to note that Holder’s claims arise from facts surrounding certain divorce and custodial proceedings to which Holder was a party.”- Holder v. State, 06-cv-252-PB (NH U.S. District Court Judge Barbadoro engaged in an unethical lack of candor in covering-up of State’s act of racial bias by hiding the true nature of Holder’s civil suit from the public scrutiny, which was the violation of Title IV of the Civil Rights Act of 1964 and that Rev. Dr. Arthur Hilson engaged in a unlawful conspiracy with Frim to interfere with his constitutional rights.). 

“In custody cases, the primary consideration is the welfare and best interests of the child involved, while other considerations are merely secondary. Custody awards are not made or changed to gratify the desires of either parent, or to reward or punish either of them. . . I further believe that the trial judge erred when he improperly based his child-custody determination on racial bias contrary to the decision of the United States Supreme Court in Palmore v. Sidoti, 466 U.S. 429, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984).  Because Palmore clearly prohibits the use of racial bias as a basis for a custody decision, this is not merely a matter of a trial court acting in a politically correct manner in hearing evidence and reaching a judicial determination. Rather, this is a matter of courts enforcing rights granted by the federal constitution and of preventing court proceedings from being converted into forums where bigotry is promoted and tolerated under the guise of trial advocacy.” Tipton v. Aaron, Ark Ct of Appls, (2004)  .

“We only add the following.  To the extent plaintiff was unhappy with any of the state court rulings, his remedy was to appeal to the United States Supreme Court.”   (citing Davison v. P.R-P.R Firefighters Corp., 471 F.3d 220, 223 (1^st Cir, 2006)”  Holder v. State,  1^st Cir  No. 06-2625 (2007) NH U.S. Attorney Colantouno refused the Holder’s request to intervene despite having the legal authority to do so and being provided with sworn certification that no attorney that was contacted would represent his claims the State court engaged in violation of Section 407 of the Civil Rights Act of 1964, Palmore v. Sidoti and Brown v. Board of Ed). 

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FACTS ABOUT THE BURNHAM SCHOOL

Racial Imbalance-the condition of a public school in which more than 50% of the pupils attending are non-white. - Mass. Gen. Law. Chap. 71 § 37D.  

Minority Student Enrollment-Burnham School-62% Minority enrollment–Mass Dept of Ed, SIMS, 2003 (Hispanic 55.9%, African American 4.2%, and Asian 2.1%) 

“Limited English Proficient (LEP)” -students whose primary or home language is other than English who need special language assistance in order to effectively participate in school instructional programs.  (Limited English Proficient Student- 38.5 %, Students whose First Language not English 51.0%) -Burnham School Profile, MA Dept of Ed, 2003.

English Language Arts-Rating-“Low”-Burnham Elementary Cycle III Accountability Report 2003.

                                     

During 2000-2003, Haverhill Public Schools among the “below average” performing school systems in the Commonwealth.  On the 2003 MCAS test, 76.9% of the African American students and 83.9% of the Hispanic American students in Haverhill scored in the “Needs Improvement” and “Warning/Failing” categories.-Executive Summary-Mass Dept of Ed-Haverhill Exam Report, 2004

“Title I facilitator” GAL Report, 2003 Grant funds are targeted to high-poverty schools and districts (poverty rate of at least 40 percent) and used to provide educational services to students who are educationally disadvantaged, low academic achievement or are at risk of failing to meet state standards. U.S. Dept of Ed- (Low Income 58.7%-Burnham School)

De Facto residential segregation, “High Hispanic population,”-Patricia Frim, Esq., GAL Report, 2003

Haverhill Public Schools, “Persistent Failure to meet Adequate Yearly Progress” MA Dept of Ed Report, 2004.

“The 29 lowest-scoring elementary school districts include Boston, Brockton, Cambridge, Chelsea, Chicopee, Fall River, Fitchburg, Greenfield, Haverhill, Holyoke, Lawrence, Lowell….”  “Romney Details Mandatory Parental Prep Plan” Press Release: The Commonwealth of Massachusetts Executive Dept., January 21, 2004.

“Kids in our urban schools, most of them minorities, are not succeeding at anywhere near the rate of their counterparts in the suburbs,” Romney said.  “And let me be clear:  The failure of our urban schools to prepare our children today for the challenges of tomorrow is the civil rights issue of our generation.” Romney Delivers 2005 State of the Commonwealth Address: Focusing on education, calls for more accountability, help in troubled urban districts, Press Release, The Commonwealth of Massachusetts Executive Dept., December 13, 2005

 “Crime rates in Haverhill are among the highest in Massachusetts cities, surpassing Lawrence in every category and even showing that city residents and businesses are the most susceptible to burglary of any major city in the state.”  Church, Zach.,  “Haverhill crime high among state cities; Lawrence shows improvement’ October 01, 2007 Lawrence-Eagle Tribune.

“District Attorney Jonathan Blodgett offered assistance to Haverhill from the federal and state law enforcement agencies in fight local gangs…In Haverhill, there have been a lot of shootings since August, with most of the activity in the Arlington Street and Acre neighborhoods.”  (During her testimony, Patricia Frim denied the existence of a crime, drug or a gang problem on Arlington Street where child’s mother resided). 

“The Respondent did not have counseling held through the church. Dr. Hilson’s office is at the church.”- Patricia Frim, 21 July 2003  “Dr. Arthur Hilson is not and never was licensed in New Hampshire...” –NH Board of Mental Health Practice Oct. 22, 2003.   NH Attorney General refused to charge the  Rev. Dr. Arthur Hilson, Pastor, New Hope Baptist Church (See Unlawful Practice RSA 330:23A).  (GAL deliberately lied to respondent and court about co-parenting counselor’s lack of professional credentials, failed to reveal conflict of interest that Hilson was her legal client, and failed to inform the court petitioner had 13 year relationship with Hilson. GAL forced respondent to attend the false counseling sessions under threat of having to undergo a $1200.00 court ordered psychological evaluation.  Also infringed on respondent’s constitutional rights to freedom of Religion by forcing him to attend counseling sessions held at Pastor’s office (Baptist Church), which favored the petitioner’s religious denomination).

Holder was granted joint legal and physical custody, but deprived of his fundamental constitutional right to make decisions regarding his son’s education and upbringing.  To add insult to injury, he was ordered by Marital Master to transport his son across NH-MA state lines to the Burnham School in Haverhill, MA, during his alternate week of legal and physical custody.   

Court documents show the GAL admitted that she had been forewarned by the petitioner of the intent to “beat” the daughter, but did not take the warning “literally,” nonetheless, falsely accused the respondent of involvement in the petitioner’s arrest.  GAL advocated for the petitioner (mother) even though she had been arrested for assault and battery on the couples’ 18-year-old daughter in the midst of the custody evaluation.  Petitioner agreed to plea bargain with prosecutor. GAL falsely insinuated to respondent’s counsel he had something to do with the petitioner’s arrest because of the timing of the assault.  Frim also falsely accused Holder of threatening her, thus instigating a controversy that led to the breakdown in the attorney-client relationship.  Counsel withdrew 14 days prior to the final scheduled hearing after refusing to abide by Holder’s decision to seek the removal of the GAL for cause (race and gender bias).  Counsel’s withdrawal forced respondent to represent himself after Marital Master Fishman denied his motion for a continuance to obtain new counsel.  

The Marital Master Fishman was forced to recuse herself after she was implicated by the carelessly Sandown Criminal Prosecutor Kevin Coyle of directly or indirectly influencing the criminal prosecution of Holder on false allegations for assault  (Coyle advised defense counsel that Holder “pissed off” the Marital Master in his divorce by previously asking for her recusal). The criminal charges were dismissed and record of arrest annulled when the ex-wife failed to appear at the scheduled trial date.  Holder filed a motion for disqualification of Marital Master Fishman and subsequently prevailed in gaining full legal and primary physical custody by proving what state and federal officials and the judiciary refused to admit or recognize which was Frim’s recommendation was the result of racial and gender bias including perjury, fraud, unlawful conspiracy and other professional and other criminal conduct, (Child languished in the substandard school system for 2 years while Holder fought to protect his right to free non-discriminatory public education in the State of New Hampshire.  Holder represented himself and used the evidence obtained from the Mass Dept of Ed (See Facts above) that was readily available to Frim at the time of her initial custody evaluation.  

CASE LAW

"Nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance."- Section 407 Title IV of the 1964 Civil Rights Act.

“Even if a GAL happens to be an attorney, when acting as a GAL, he or she is a party to the proceeding and not the child’s attorney.  Therefore attorney-client privilege which generally forbids an attorney to reveal communications with clients does not apply to communications be GALs and children or other from who they may gather information.  Ross v. Gadwah, 131 N.H. 391, 395 (1988). Because due process requires that parents have the opportunity to counter evidence presented to the court, none of the information the GAL receives is shielded from discovery by attorney-client privilege.  (Respondent was denied his due process right when his Motion to Compel GAL to turn over the custody evaluation file was denied by Marital Master Fishman.  GAL objected on the grounds she wasn’t asked for the file) (She couldn’t be trusted).

“While the role of guardian ad litem is valued by the courts, their recommendations are not binding.  Recommendations of the guardian ad litem do not, and should not, carry any greater presumptive weight than the other evidence in the case.  The guardian ad litem is appointed to represent the best interest of the child, not to make a conclusive or presumptive determination; that is the province of the court or master.”  Richelson v. Richelson, 130 N.H. 137, 143 (1987) 

“It is cardinal with us that the custody, care and nurture of the child reside first in parents, whose primary function and freedom include preparation for obligations the State can neither supply nor hinder.”  321 U.S. at 166.

“In a long line of cases, we have held that , in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the right—to direct the education and upbringing of one’s children” (citing Meyer and Pierce) In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children. 

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws freedom from discrimination on the basis of race, gender and sexual orientation.” Amendment XIV, U.S. Const.

“The Constitution cannot control such prejudice, but neither can it tolerate it. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”  Palmore v. Sidoti.  466 U.S. 429  

"Public officials sworn to uphold the Constitution may not avoid a constitutional duty bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held." Palmer v. Thompson, 403 U.S. 217, 260 -261 (1971) (WHITE, J., dissenting).

“A core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Strauder v. West Virginia, 100 U.S. 303, 307-308, 310 (1880).

“Officials shall not assign students to schools and classes on a racial basis, or deny students equal educational opportunity on the basis of race or color.” Brown v. Board of Education, 347 U.S. 483. 

“No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by; (a) the deliberate segregation by an educational agency of an individuals on the basis of race, color, or national origin among or within schools (d) the transfer by an educational agency, whether voluntary or otherwise, of a student from one school to another if the purpose and effect is to increase segregation of students on the basis of race, color, or national origin among the school of such agency.”-Equal Educational Opportunities Act of 1974 (20 USC §1701).

“Discrimination based on any characteristic that the Court has declared suspect, i.e. Race and Religion, is presumed to be irrational and constitutionally invalid. When such discrimination is constitutionally challenged, the courts proceed with strict scrutiny and the government carries a difficult burden of proof to justify the legitimacy of its actions.”- U.S. Supreme Court

“Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of this Court’s precedents and the Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it.”  Parents v. Seattle School Dist. Et al, 426 F. 3d 1162; No. 05–915, 416 F. 3d 513, Sup Ct. 2007 reversed and remanded.

“A State may not permissibly engage in deliberate conduct or deliberate omissions that have the foreseeable effect of perpetuating known segregation, where its acts or omissions are undertaken in response to and in accordance with the segregative wishes of others that were known to be racially motivated.” United States v. City of  Yonkers,  Docket No. 95-6182, 95-6206, U. S. Court of Appeal, (2nd Cir), 96 F.3d 600; 1996 U.S. App. LEXIS 24856. 

This Court should give no credence to such cynical, reflexive conclusions about race. See, e.g., Palmore v. Sidoti, 466 U. S. 429, 432 (1984) ("Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category"); When the State's interest in administrative convenience is pitted against the Fourteenth Amendment's ban on racial segregation, the latter must prevail, when there has been no "serious, good faith consideration of workable race-neutral alternatives that will achieve the [desired goal]," Grutter v. Bollinger, 539 U. S. 306, 339 (2003)

Acts of racial bias and prejudice by court or government officials

cannot be tolerated in a civilized society.  Racial bias is a consequence

of intolerance, indifference, insensitivity, ignorance, or negative prejudice, and

harms minorities, fosters unequal treatment and outcomes when justice is sought.

The State court’s ignorance of the larger social context, adverse educational

impact and misperceptions of cultural attitudes towards education shows

that racial bias is still culturally and institutionally ingrained in society and

our branches of government.  These individuals have undermined the historical significance of Brown v. Board of Ed in eradicating racism and segregation in education.

Accountability is demanded by society when a judge knowingly and deliberately disregards the facts, the law, and the civil and constitutional rights of others.

There is no stereotype of a racist.  They come from all walks of life, education, gender and social background, including those who serve as members of our

State and Federal Judicial, Executive and Legislative branches of government.

Some racists wear Stars, Bars, Stripes, Badges and in this case, even Black Robes.

STOP INSTITUTIONAL RACISM

Ralph Holder

Justice of the Peace

State of New Hampshire

Master of Arts, Criminal Justice

UNIVERSITY OF MASSACHUSETTS-LOWELL

603-382-7459