Law & Courts

Federal Judge Overturns New Hampshire Law on Teaching ‘Divisive Concepts’

By Mark Walsh — May 28, 2024 4 min read
Students walk into the front doors at Hinsdale Middle High School, in Hinsdale, N.H., on the first day of school on Aug. 30, 2022.
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A federal judge on Tuesday struck down a New Hampshire law that bars the teaching of “divisive concepts,” such as that one individual’s race is superior to others or that any person is inherently racist.

U.S. District Judge Paul J. Barbadoro of Concord, N.H., said the law is impermissibly vague and in violation of the First Amendment because it does not provide fair notice to teachers as to what they may not teach, does not explain when classroom discussion of a forbidden topic crosses the line into impermissible teaching, and does not make clear when teacher speech outside the classroom violates the law.

The judge, who referred to the 2021 law as four amendments to the state’s education and antidiscrimination laws, said the measures “force teachers to guess as to which diversity efforts can be touted and which must be repudiated, gambling with their careers in the process.”

Violations of the provisions could lead to teachers having their credentials revoked and expose them to civil liability, the judge said.

“Although teachers do not face criminal penalties for teaching a banned concept, it is difficult to conceive of more serious consequences that could befall a person in a civil proceeding than those that a teacher might face if they are found to have done something that the Amendments prohibit,” Barbadoro said.

Similar laws in a handful of other states

The New Hampshire measure is one of more than a dozen around the nation seeking to limit teaching about race. There are still pending legal challenges to similar laws in Florida and Oklahoma, while a measure in Arizona was blocked by state courts in 2021 and later repealed.

New Hampshire lawmakers modeled their state’s divisive concepts provisions on an executive order that President Donald Trump had signed in 2020 that targeted federal training perceived as based on critical race theory and similar topics.

The New Hampshire law identified four concepts that students may not be “taught, instructed, inculcated, or compelled to express belief in, or support for.” The first was “that one’s age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin is inherently superior to people of another age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

The second banned concept was that a person, by virtue of any of those characteristics, was “inherently racist, sexist, or oppressive, whether consciously or unconsciously.” The third was that any individual should be discriminated against by virtue of the covered characteristics. The fourth was that people of any covered characteristic cannot and should not treat others without regard to such characteristics.

New Hampshire Education Commissioner Frank Edelblut endorsed the provisions, writing in op-eds that they were a necessary “contribution to the education system” because of “anti-racist” materials being spread within the system.

The provisions were challenged in separate lawsuits by teachers and the state affiliates of the American Federation of Teachers and the National Education Association.

Barbadoro, in his May 28 summary judgment ruling in Local 8027, AFT-NH v. Edelblut, said that one problem with the state law provisions is that “rather than take on issues like structural racism, implicit bias, and affirmative action directly,” they employ general terms such as teaching that one race is superior to another, that individuals are inherently racist, and that individuals should not be subject to adverse treatment because of their race.

“While these banned concepts may appear straightforward at first glance, their ambiguity comes to light when put into practice,” he said. Teachers might wonder whether they can teach about the benefits of affirmative action in college admissions or even teach the U.S. Supreme Court’s decision on that topic last year without worrying that they might violate the state laws, he said.

“All told, the banned concepts speak only obliquely about the speech that they target and, in doing so, fail to provide teachers with much-needed clarity as to how the amendments apply to the very topics that they were meant to address,” Barbadoro said. “This lack of clarity sows confusion and leaves significant gaps that can only be filled in by those charged with enforcing the Amendments, thereby inviting arbitrary enforcement.”

The measures are also unclear about what it means to teach the banned concepts, as opposed to merely discussing topics that might touch on them, he said.

“Teachers are thus left in the untenable position of having to wager their careers on a guess or else refrain from discussing matters that implicate the banned concepts altogether,” the judge said.

Megan Tuttle, the president of NEA-New Hampshire, said in a statement that the banned-concepts provisions “stifled New Hampshire teachers’ efforts to provide a true and honest education. Students, families, and educators should rejoice over this court ruling which restores the teaching of truth and the right to learn for all Granite State students.”

Deb Howes, the president of AFT-New Hampshire, said: “The vague, unconstitutional divisive concepts law was a dreadful effort to limit truthful discussion about history, gender, race, and identity.”

There was no immediate reaction from Edelblut or the New Hampshire attorney general’s office.

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