Credit Education Department Commissioner Frank Edelblut with setting a worthwhile goal for the guidance his department and the Department of Justice jointly issued last week regarding the so-called “divisive concepts” legislation. The goal, he said, according to N.H. Bulletin, is “to provide clarity around the law.” A further goal should be to provide certainty about the law’s application, however, and the guidance will not provide much comfort for teachers and public employers who feel, justifiably, that the law puts them out on a limb.
The new law was touted by Gov. Chris Sununu as a strengthening of the state’s anti-discrimination statutes. But it’s impossible to ignore that it began as a bill to prohibit the teaching of Critical Race Theory and workplace training about systemic racism and implicit bias — what conservatives across the country like to call “divisive concepts.” That seemed too overt for Sununu, who signaled reservations about the bill. As a result, it was recast by Republican leadership as an anti-discrimination measure and stuffed into the budget trailer bill passed by the Legislature last month and enthusiastically signed into law by Sununu.
The repackaging of the law seemed intended to provide Sununu cover to oppose a direct divisive-concepts bill while appeasing the more radically conservative of his base. The fallout has no doubt been uncomfortable for him, with educators, school boards and others voicing concern about the measure’s vagueness and chilling effect on teaching and training. Then, 10 of his 17 appointees to the Governor’s Advisory Council on Diversity and Inclusion, including Keene State College’s Dottie Morris and Cheshire County Sheriff Eli Rivera, resigned in protest over his signing of the legislation. Even some business leaders have said the law will negatively impact the state’s efforts to attract and retain workers.
Clarity about the law’s application and effect was called for, and last week’s FAQ-format guidance seeks to provide it. And provide some clarity it does — to a point. The guidance says teachers and public employers must teach and train all “equally and without discrimination” and prevents them from teaching “that a person or group is inherently superior, inferior, racist or sexist.” It clarifies that “inherent characteristics” are those which are “natural, biological, or innate” and not “merely apparent, accidental or based on external factors.” The law, it also states, does not prohibit the teaching of historical subjects such as racial or other discriminatory treatment of groups or people, nor about current events including, specifically, the Black Lives Matter movement and other efforts to promote equality and inclusion. As for workplace training of public employees, the guidance states implicit bias or other training aimed at diversity and inclusion is not prohibited.
Murkier, however, is the attempt to assure teachers and public employers that the law does not prohibit education or training related to racism, sexism or other practices harmful to identified groups simply because it may make students or participants feel “uncomfortable.” While an unsurprising pronouncement — What meaningful teaching about race or discrimination wouldn’t cause discomfort? — as guidance it’s highly subjective and leaves open what teaching or training might move beyond being merely “uncomfortable” and become impermissible.
And other questions remain. For example, while helpfully clarifying implicit bias training is permitted in public workplaces — which is critical for ongoing efforts to enhance law enforcement training, for example — the guidance is silent on whether it may be taught in the schools. Since, in the words of the guidance, implicit bias training aims to help people become aware of unconscious biases “to encourage treating others with dignity and respect,” schools are left wondering whether exposing students to such concepts might run afoul of the law.
And there’s the critical issue — the lack of certainty. The law’s proponents cavalierly dismiss claims it will have a chilling effect on teaching or training, but, even with this latest guidance, how could it not? The law permits any aggrieved student, parent or public employee to file a complaint, including in the courts, that the teaching or training they’ve received has stepped over the still ill-defined line. It’s some comfort that the guidance signals the state education and justice departments won’t apply the law in an aggressively draconian fashion. But their guidance is not binding in court, and it seems likely certainty will come only from the courts over time.
Meanwhile, any teacher or public employer who’s uncertain whether a class or training course is getting too close to that line will tend to draw back from it. That’s the law’s chilling effect, and it’s a reprehensible and unwarranted intrusion by an activist state Legislature and governor.