Some worry ‘divisive concepts’ bill could affect college Title IX funding

State House exteriror
How the new "divisive concepts" law would work with respect to Title IX trainings, and sexual assault prevention, has not been directly addressed. (Dana Wormald | New Hampshire Bulletin)

Update: This story has been updated to clarify that the New Hampshire Department of Justice is taking a neutral position on the “divisive concepts” bill.

The anti-discrimination training was nearly over, but one participant was not satisfied. As the group debriefed, he made it known. 

“‘I hate coming to these things, because you always make me feel guilty for being male and being white,’ ” the middle-aged academic told Dottie Morris, one of the co-facilitators of the training. 

Morris, the associate vice president for institutional diversity and equity at Keene State College, hadn’t mentioned a specific race during the training at all; the session was focused on life experiences. But she decided to dive deeper.

“In that moment I engaged with him and said, ‘Okay, help me understand what we did,’ ” she recalled in an interview. “Because I don’t want to do that. That’s not what I want to do and I want to change.”

The man – who was not a faculty member at Keene State – continued: The training seemed designed to make him feel bad. Morris explored further. Finally, they reached a breakthrough.

“We got to a point where he said, and this was his own words: ‘I guess I was so primed to feel guilty that anything you did would have made me feel guilty,’ ” she said. 

It was a misunderstanding that could have been an argument. But Morris helped turn it into a lesson.

“If that conversation wouldn’t have taken place, if he didn’t feel safe enough to speak up, he would have left there feeling angry and guilty,” she said. “But that didn’t happen.”

The experience is why Morris believes in open, empathetic conversations when she carries out her training programs. Now, Morris worries a proposed piece of legislation could threaten that open dialogue – and potentially interfere with federal funding. 

For months, debate over the effects of the “divisive concepts” bill has centered on elementary and secondary schools. 

The bill, an amended version of which was added to the Senate budget bill that passed Thursday, would prevent public agencies, schools, and universities from teaching that some protected classes like race or gender are privileged or biased against another  – with exceptions. 

But some public college officials and government officials worry the legislation could affect federally mandated trainings toward sexual assault protections and put colleges into a squeeze between federal requirements and state requirements.

“That’s why I think I’m so nervous about this particular bill,” Morris said. “Because then it reduces the potential for that type of free exchange of ideas, even if they are differences of opinion or divisive or whatever. That’s part of what they’re supposed to do. They help young people navigate that.”

Changing those training programs to meet the state law could create complications with schools’ ability to receive federal Title IX funding, some say.

“It does raise some interesting questions,” said Sean Locke, assistant attorney general at the New Hampshire Department of Justice, speaking at a state diversity council on which he and Morris are members. “Because certainly those trainings – they may be required by federal regulation or informal record or informal rules or policies of the U.S. Department of Education, and that could raise Supremacy Clause issues.”

The New Hampshire Department of Justice is taking a neutral position on the divisive concepts bill, a department spokeswoman said Tuesday, though Attorney General John Formella has given legal advice to drafters of the latest Senate version.

Since 1972, Title IX of the federal civil rights law has mandated that colleges and universities that receive federal funding must take steps to eliminate sex-based discrimination on campus. Over 50 years, the law has been modified and expanded, growing the responsibility for college administrators.

In 2013, Congress amended the law to address sexual assault on campus, imposing new requirements for colleges to report sexual assaults and adopt disciplinary procedures for those accused of assault.

The law, the Campus SaVE Act, included a mandate that colleges implement annual training programs for students to combat assault. 

Years later, many colleges have built up those programs. Keene State College, for one, partners with “No Zebras, No Excuses,” a program supported by the National Association of Student Personnel Administrators that creates an immersive theater experience for freshmen explaining the limits of consent. 

To Morris, who has helped guide the new programs, the lessons and the discussions that ensue have moved the needle on campus toward awareness and understanding.

“I think people feel a lot safer, including people who could potentially be ‘accused,’ because now they understand” where the line is, she said. 

But the proposed divisive concepts law could complicate how those trainings are carried out, she worries.

Locke, who heads the New Hampshire Department of Justice’s Civil Rights Unit, agreed that the new state law could force some colleges and universities to rethink their training programs. 

“Schools may be put in a position where they kind of have to thread a very fine needle of complying with Title IX requirements but being very limited in how they might be able to do that by this type of a statutory scheme,” Locke said of the state law.

“Or they might be concerned and feel unable to hire a particular trainer or go through a particular training, because they may be afraid of running afoul of these provisions. It could create concerns of that nature.”

Defenders of the law have noted in the past that the bill crafts exceptions for diversity and inclusion training programs in schools and workplaces, and allows educators to talk about implicit bias as a concept – if not an absolute reality. 

But exactly how the new law would work with respect to Title IX trainings, and sexual assault prevention, has not been directly addressed. Sen. Jeb Bradley, the Senate minority leader who helped author the latest amendment to the bill, was not available for an interview Monday, a Senate spokeswoman said. 

From Morris’s experience, having the conversations are key to getting to a common-ground understanding of what constitutes abuse, discrimination, or assault – and how to stop it. 

“It’s just so wonderful when everyone has some clarity around what needs to be done, what they can do and what they can’t do,” she said. 

“If you don’t have anything in place where people can have open conversations, that’s where you have a lot of secrets, and a lot of harmful behavior.”