Federal Judge Strikes Down NH’s ‘Divisive Concepts’ Law

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Courtesy file photo

Frank Edelblut, commissioner of the Department of Education

By NANCY WEST, InDepthNH.org

CONCORD – A federal judge on Tuesday struck down the state’s controversial ‘divisive concepts’ law, which had its roots in an executive order by former President Trump, that limited how teachers can discuss issues such as race, sexual orientation and gender identity with students.

The law, passed in a budget rider in 2021, created a chilling atmosphere in classrooms around the state with teachers unsure of what they could discuss about those issues without fear of being suspended or even banned from teaching altogether in the state.

In New Hampshire it’s called the Law Against Discrimination and makes it unlawful for a public employer to “teach, advocate, instruct, or train” the banned concepts to “any employee, student, service recipient, contractor, staff member, inmate, or any other individual or group.”

The four banned concepts include:  That one’s age, sex, gender identity, sexual orientation, race, creed, or color is inherently superior or inferior; that an individual, by virtue of age, sex, gender identity, sexual orientation, race, creed, color…is inherently racist, sexist, or oppressive, whether consciously or unconsciously; that an individual should be discriminated against  because of his or her age, sex, gender identity, sexual orientation, race, creed, color; and that people of one age, sex, gender identity, sexual orientation, race, creed, color…cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color…., according to the judge’s ruling.

U.S. District Court Judge Paul Barbadoro ruled the law is unconstitutional under the 14th Amendment because it is too vague.

In the suit filed against Education Commissioner Frank Edelblut and the Department of Education by the National Education Association of New Hampshire and the American Federation of Teachers of New Hampshire, Barbadoro sided with the teachers and granted their motion for summary judgment.

  “The Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement. Thus, the Amendments violate the Fourteenth Amendment to the U.S. Constitution,” Barbadoro wrote.

Representing Edelblut, the Attorney General’s Office said it is looking at its options.

“The State is currently reviewing the court’s order and will consider next steps including whether to appeal,” said Mike Garrity, spokesman for Attorney General John Formella.

The controversy escalated after Edelblut posted a page of the Department of Education website to file complaints against teachers for allegedly discriminating and a group called Moms for Liberty offered a $500 reward “for the person that first successfully catches a public school teacher breaking this law.”

Barbadoro wrote: “RSA § 193:40, IV provides that a “[v]iolation of this section by an educator shall be considered a violation of the educator code of conduct that justifies disciplinary sanction by the state board of education.

“An ‘educator’ is defined as ‘a professional employee of any school district whose position requires certification by the state board [of education].’ RSA § 193:40, V. Potential disciplinary sanctions include reprimand, suspension, and revocation of the educator’s certification.

“In other words, an educator who is found to have taught or advocated a banned concept may lose not only his or her job, but also the ability to teach anywhere in the state,” Barbadoro wrote.

Reaction was swift Tuesday.

Megan Tuttle, NEA-NH president, said, “As a social studies teacher, I know how important it is for students to have truthful and accurate information that helps them better understand the lives, cultures, and experiences of different people.

“It builds critical thinking skills that are truly foundational to their success in all facets of life. But New Hampshire’s ‘banned concepts’ law 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.”

Barbadoro was critical of Edelblut’s two op-ed pieces in the New Hampshire Union Leader.

“Despite the fact that the articles offer minimal interpretive guidance, Department of Education officials have referred educators to them as a reference point. For example, after showing two music videos to her class as part of a unit on the Harlem Renaissance, Alison O’Brien, a social studies teacher at Windham High School, was called into a meeting with her principal and informed that she was being investigated by the Department of Education in response to a parent’s complaint.

“Department of Education Investigator Richard Farrell recommended that Windham’s administrators consult Edelblut’s April 2022 opinion article to understand the context of the investigation against O’Brien, without otherwise explaining why O’Brien’s lesson warranted investigation. After witnessing her experience, O’Brien’s colleagues grew anxious about facing similar actions,” Barbadoro wrote.

James McKim, president, Manchester NAACP reacted saying: “We welcome this court ruling with open arms. The banned concepts law failed to consider that this nation was founded on racism and that we must work to correct the inequities in education, health, wealth, and criminal justice. Today’s ruling allows us to move forward, acknowledge the history of our country, and work toward treating all people with dignity and respect.”

 Ronelle Tshiela, Co-Founder, Black Lives Matter New Hampshire: “Today’s federal court ruling is a monumental victory for racial justice. Striking down the banned concept law reaffirms our commitment to teaching an honest and comprehensive account of American history. This ruling empowers educators to accurately recount our nation’s past, ensuring that stories of systemic injustice are rightfully acknowledged and preserved. We move one step closer to dismantling systemic racism and fostering a future rooted in equity and understanding.”

 Anthony Poore, President & CEO, NH Center for Justice & Equity said: “Today’s court decision is a victory for our public school educators, administrators, and those that seek to protect a teacher’s freedom to teach an accurate and honest history of the Granite State and the Nation.”

Senate Democratic Leader Donna Soucy, D-Manchester, stated, “I am pleased that Judge Barbadoro recognized today what the Senate Democrats have said for years: the Republican’s ‘divisive concepts’ law is an unconstitutional infringement on the rights of Granite Staters. 

“Over the past few sessions, Senate Republicans have been relentless in their attempts to spread misinformation about New Hampshire teachers indoctrinating students in public schools. Their clear target is to cripple our public education system, push students toward private and religious schools, and further their agenda to attack our LGBTQ+ family, friends, and neighbors. This is unacceptable and not the New Hampshire way.”

Based in Trump

Barbadoro said the laws at issue in this case have their genesis in New Hampshire House Bill 544, which was based on former President Trump’s executive order on “Combating Race and Sex Stereotyping.”

“That executive order sought to end federally-funded training based on ‘anti-American propaganda,’ such as ‘critical race theory,’” Barbadoro wrote.

After President Biden revoked President Trump’s executive order, New Hampshire state legislators introduced HB544 to prohibit the state from teaching the same ‘divisive concepts’ identified in President Trump’s executive order, Barbadoro said.

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