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.
  • Save to favorites
  • Print

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to similar laws in Florida and Oklahoma, while a measure in Arizona was blocked by state courts in 2021 and later repealed.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.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Reading & Literacy Webinar
(Re)Focus on Dyslexia: Moving Beyond Diagnosis & Toward Transformation
Move beyond dyslexia diagnoses & focus on effective literacy instruction for ALL students. Join us to learn research-based strategies that benefit learners in PreK-8.
Content provided by EPS Learning
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Teaching Webinar
Cohesive Instruction, Connected Schools: Scale Excellence District-Wide with the Right Technology
Ensure all students receive high-quality instruction with a cohesive educational framework. Learn how to empower teachers and leverage technology.
Content provided by Instructure
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School Climate & Safety Webinar
How to Use Data to Combat Bullying and Enhance School Safety
Join our webinar to learn how data can help identify bullying, implement effective interventions, & foster student well-being.
Content provided by Panorama Education

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Biden Administration Asks Supreme Court to Spare Huge E-Rate Funding Source
A lower court ruling has jeopardized more than $2 billion in annual funding for internet connectivity for schools and libraries.
3 min read
FILE - The Supreme Court is seen under stormy skies in Washington, June 20, 2019. In the coming days, the Supreme Court will confront a perfect storm mostly of its own making, a trio of decisions stemming directly from the Jan. 6, 2021 attack on the U.S. Capitol. (AP Photo/J. Scott Applewhite, File)
The Biden administration has asked the U.S. Supreme Court—shown here in June 2019—to reinstate a funding mechanism that distributes $2 billion annually for the E-rate program that supports internet connectivity in schools and libraries. A federal appeals court ruled that the mechanism was unconstitutional in July.
J. Scott Applewhite/AP
Law & Courts Court Revives Asian-American Groups' Challenge to New York City Selective Admissions
New York's program has sought to increase representation of Black and Latino students in its selective high schools.
5 min read
Image of a gavel
iStock/Getty
Law & Courts The New Title IX Regulation and Legal Battles Over It, Explained
The Biden administration's regulation that interprets Title IX to protect LGBTQ+ students faces multiple legal challenges.
5 min read
Claudia Carranza, of Harlingen, hugs her son, Laur Kaufman, 13, at a rally against House Bill 25, a bill that would ban transgender girls from participating in girls school sports, outside the Capitol in Austin, Texas, on Wednesday, Oct. 6, 2021.
Claudia Carranza, of Harlingen, Texas, hugs her son, Laur Kaufman, 13, at a rally for transgender rights in Austin on Oct. 6, 2021. The U.S. Department of Education's new Title IX regulation, which adds gender identity and sexual orientation to the definition of sex discrimination, has been challenged in multiple lawsuits and blocked in 26 states and at individual schools in other states.
Jay Janner/Austin American-Statesman via AP
Law & Courts Court Upholds Injunction on Arizona Transgender Sports Ban for Young Athletes
A federal appeals court upholds an injunction against an Arizona law, allowing two transgender girls to compete on female teams.
3 min read
Arizona State Superintendent of Public Instruction Tom Horne, left, a Republican, takes the ceremonial oath of office from Arizona Supreme Court Chief Justice Robert Brutinel, right, as wife Carmen Horne, middle, holds the bible in the public inauguration ceremony at the state Capitol in Phoenix, Thursday, Jan. 5, 2023.
Arizona schools chief Tom Horne, left, takes the ceremonial oath of office at the state Capitol in Phoenix in January 2023. The Republican is the lead defendant in a lawsuit filed by two transgender girls challenging the Save Women's Sports Act, which bars transgender women and girls from female sports.
Ross D. Franklin/AP