NH federal court strikes down ‘banned concepts’ teaching law

By ETHAN DEWITT

New Hampshire Bulletin

Published: 05-28-2024 4:31 PM

The U.S. District Court of New Hampshire struck down a 2021 law Tuesday that barred teachers from advocating for certain topics, siding with teachers unions and the American Civil Liberties Union of New Hampshire and ruling that the law is unconstitutionally vague.

In his decision, Judge Paul Barbadoro held that the law, known by opponents as the “divisive concepts” or “banned concepts” law, violated teachers’ 14th Amendment rights because it is too vague for them to follow.

The law prohibits K-12 public school staff from any instruction that advocates for four concepts: that a person of any race, gender, sexual orientation, or other characteristic is inherently “superior” to another; that any individual is inherently racist, sexist, or oppressive against another for any characteristic; that an individual should be discriminated against or receive adverse treatment for any characteristic; and that people of one characteristic “cannot and should not attempt to treat others without regard to” one of their characteristics.

The characteristics covered by the law are a person’s “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

The law, which was in part modeled after an executive order by President Donald Trump that applied to federal employees and was repealed by President Joe Biden, was presented by Republican lawmakers as an anti-discrimination statute meant to ensure that all students were treated equally. It came as Republican lawmakers raised concerns about diversity, equity, and inclusion efforts implemented in public schools, and argued that teachers were espousing “critical race theory” in classrooms.

The law allowed parents to bring complaints to the state’s Commission for Human Rights against teachers and school staff who they believed violated the new anti-discrimination statute. And it gave the State Board of Education the power to revoke educators’ teaching licenses if they were found by the commission to be in violation.

But teachers unions and others raised concerns that the prohibited concepts were too unclear to follow and would result in educators self-censoring instruction around certain topics such as race or gender for fear of losing their teaching credentials.

In his order Tuesday, Barbadoro sided with the state’s two teachers unions – the National Education Association of New Hampshire (NEA) and the American Federation of Teachers of New Hampshire (AFT) – who had argued that the law violated their 14th Amendment rights because it did not provide clear guidance of what teachers should or shouldn’t teach.

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Barbadoro’s ruling grants “declaratory relief” to plaintiffs, meaning that he is ruling that the law is unconstitutional, but it does not grant “injunctive relief” – a stricter ruling that would have stopped the state from carrying out the law.

In his order, Barbadoro wrote that he didn’t believe he needed the latter relief because he believed the state would respect the ruling and stop enforcing the law.

The ruling was a setback for the state, which had argued that the Attorney General’s Office had given teachers sufficient guidance in a “Frequently Asked Questions” document released in 2021 that outlined scenarios in which teachers would violate or not violate the law.

There are no known cases of New Hampshire teachers who have been found by the Commission for Human Rights to have violated the law.

But Barbadoro said there were a number of scenarios that the FAQs did not address. For instance, he cited the example of one plaintiff, Patrick Keefe, an English teacher at Campbell High School in Litchfield, who was unsure whether he could teach the Toni Morrison novel “Beloved” – a book about slavery – by connecting its themes to current events. In a deposition, Keith said he had asked for clarity from his school’s administration but “was told there was none available other than the Attorney General’s Frequently Asked Questions,” Barbadoro noted.

Barbadoro used that example to bolster his bigger conclusion.

“The Amendments are vague not because they subject teachers to severe professional sanctions, but because they fail to provide teachers with sufficient notice of what is prohibited and raise the specter of arbitrary and discretionary enforcement,” he ruled, referring to the law as the “amendments.”