By GARRY RAYNO, InDepthNH.org
CONCORD – The Attorney General announced Wednesday the state will appeal a federal judge’s decision that struck down the state’s controversial “divisive concepts” law calling it unconstitutionally vague in violation of the Fourteenth Amendment.
Attorney General John Formella said his office filed the appeal Wednesday to the United States First Circuit Court of Appeals in Boston.
Formella said the appeal was filed because his office believes the US District Court misapplied the vagueness doctrine in making its decision.
He claims the court improperly second guesses the legitimate policy choices made by the state legislature in setting curriculum within New Hampshire’s public schools.
The law was based on an executive order by former President Donald Trump, that limited how teachers discuss issues such as race, sexual orientation and gender identity with students, creating a chilling effect for teachers and what they can discuss with students without fear of suspension or being banned from teaching in the state.
The law passed in a budget rider in 2021, after it failed to garner enough support as a stand-alone bill in the House.
In his explanation for appealing the ruling, Formella focused more on protecting the legislative process and work, than the intricacies of US District Court Judge Paul Barbadoro’s decision.
“Today’s decision to appeal this misguided ruling underscores our commitment to upholding the right of duly elected legislators to enact carefully considered policy and clarity in our state laws,” said Attorney General Formella. “By appealing this decision, we aim to ensure that our laws are interpreted and applied in a manner that respects both the constitution and the democratic process. This case is not just about legal technicalities; it’s about safeguarding the integrity of our legislative process and ensuring clarity and stability for our educators, students, and communities across New Hampshire.”
At the time the cases were filed, educators and free speech advocates claimed teachers were given little useful guidance by the Attorney General’s Office or the Department of Education on what would be acceptable in a classroom environment and what could lead to a complaint being filed.
The New Hampshire “Law Against Discrimination” 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.
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.
The controversy escalated after Edelblut posted a page on 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.
After Barbadoro’s May ruling, the heads of the state’s two largest teachers’ unions praised the decision saying it would allow truthful and accurate information to be presented to students to help understand their lives, cultures and experiences of different people.
Minority advocates also praised the decision as did Democratic politicians who said the Republican sponsored legislation was clearly unconstitutional.
In his order, Barbadoro was critical of Edelblut’s two op-ed pieces in the New Hampshire Union Leader on the legislation.
“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.
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 HB 544 to prohibit the state from teaching the same ‘divisive concepts’ identified in President Trump’s executive order, Barbadoro said.
Formella said while the appeal is pending, the district court’s decision remains in effect and the statutes that were challenged in the case may not be enforced.
His office has provided a guidance document to the Department of Education, Commission for Human Rights, and Department of Labor addressing compliance with the district court’s decision pending appeal.
In the document, he notes that other sections of the state’s discrimination statutes remain in effect and complaints and investigations may continue for those sections.
InDepthNH’s Nancy West contributed to this report.
Garry Rayno may be reached at garry.rayno@yahoo.com.