Federal court to hear arguments on NH's 'divisive-concepts law'
Opponents of New Hampshire’s so-called “divisive concepts” law are set to appear in federal court Wednesday to argue against a statute they say is unconstitutionally vague, chills classroom discussions and is harmful to teachers and students.
Lawyers with the N.H. Attorney General’s office are slated to argue in defense of the law. They say it is a proper anti-discrimination measure that doesn’t violate free speech guarantees and deserves to remain in effect.
The N.H. Legislature passed the measure last year as part of a 220-page budget trailer bill. Signed into law by Republican Gov. Chris Sununu, it drew two lawsuits that have now been consolidated into one court case in U.S. District Court in Concord.
It’s commonly referred to as a divisive concepts law, but those words do not appear in the statute. They were in an earlier version of the legislation that failed to advance.
The law on the books prohibits educators from telling students that some individuals by virtue of age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin are inherently racist, sexist or oppressive, consciously or unconsciously.
Opponents say these provisions are ambiguous and do public harm by gagging teacher-student dialogue about historically marginalized communities, while supporters say they are intended to allow teaching, but not preaching, about discrimination.
The litigation seeks to block enforcement of the law, which also applies to instruction in public workplaces.
A lawsuit filed Dec. 20 on behalf of the National Education Association-New Hampshire as well as an employee of the Manchester School District and an employee of the Exeter Region Cooperative School District say educators and school administrators are left with “an impossible and unconstitutional choice:
“Either avoid important topics in classroom discussion and instruction related to race, gender, gender identity, sexual orientation, and disability — including topics like systemic racism and implicit bias — or risk losing their licenses.”
The law specifies that teachers who violate its provisions shall be considered in violation of the educator code of conduct, which justifies disciplinary sanction by the state Board of Education. It also permits lawsuits against school districts for such violations.
The NEA-NH lawsuit, which names state Education Commissioner Frank Edelblut among the defendants, says the statute is illegally vague:
“Can one discuss the reasons why in our country’s entire history only a single African American has ever been elected the President of the United States and no woman ever has? Can one teach about the proven fact that racial and other unconscious biases shut the doors of opportunity for so many? Can one teach Martin Luther King Jr.’s ‘I Have a Dream’ speech and discuss whether that dream has been realized?”
The American Federation of Teachers-New Hampshire also filed a lawsuit, which said, among other arguments, that the statute violates freedom of speech provisions under the First Amendment of the U.S. Constitution.
“Indeed, it broadly precludes any teaching that relies on concepts that certain members of the New Hampshire legislature deem offensive, including the idea that individuals may possess implicit or unconscious biases,” that lawsuit, filed Dec. 13, states.
The Attorney General’s Office filed a legal motion on March 25 contending the law is not vague:
“The language of the provisions, particularly when coupled with guidance issued by the Department of Education, the Commission for Human Rights, and the Department of Justice, demonstrates that the new antidiscrimination provisions provide a discernible, objective standard for what conduct is proscribed.”
The AG’s office also stated in its motion that the law doesn’t preclude discussion of historic or current events, things that make people uncomfortable, the lingering effects of historic events, slavery, Jim Crow Laws as well as the treatment of women, the LGBTQ community and others.
The motion also stated that classroom instruction by public school teachers is not a recognized form of protected free speech under numerous court precedents.
The N.H. Department of Education created a web page to explain how the law works, including a link to a form that is the first step in filing a complaint. The form is to be filed with the state Human Rights Commission, which didn’t return calls Monday to determine whether any such complaints have been lodged.
Oral arguments are set for 1 p.m. Wednesday in U.S. District Court at 55 Pleasant St. in Concord.
Rick Green can be reached at RGreen@KeeneSentinel.com or 603-355-8567