Attorney general denies request for emergency meeting on ‘divisive concepts’

    Exterior of the Concord, N.H., police department
    In an exhaustive report with 48 suggestions to improve New Hampshire policing and racial bias, released last fall, the commission recommended the state implement implicit bias trainings for new police officers. (Dave Cummings photo)

    As the New Hampshire budget enters its final stage of negotiation, one member of the state’s Commission on Law Enforcement Accountability, Community, and Transparency has asked for a meeting to discuss one of its more contentious items: the “divisive concepts” language. 

    But Attorney General John Formella denied that request this week, arguing it falls out of the scope of the commission’s duties. 

    Formella said the new legislation, which seeks to target “critical race theory” and bans the teaching of “unconscious” racial bias in schools and police departments, would not interfere with the initiatives endorsed by the commission last year, which include anti-implicit bias trainings for police. 

    “I very much appreciate the desire to have discussions about the referenced legislative language that is currently in the budget, and I have given this a lot of thought over the past few days,” the attorney general wrote in a reply letter Tuesday.

    “However, with all due respect to Joseph and others who have expressed concerns, I think that convening the LEACT Commission to discuss, and potentially take a position on, this language would not be within the scope of the LEACT Commission’s charge as laid out in Executive Order 2020-11.”

    The exchange started with a letter sent to Formella on June 4. In that letter, Joseph Lascaze, the smart justice organizer for the American Civil Liberties Union of New Hampshire and a member of the commission, pointed to several areas that the proposed “divisive concepts” language could impinge on the commission’s goals.

    The latest version of the language, voted into the budget by the Senate, would prohibit public school teachers and government agencies from teaching, among other things, “that an individual, by virtue of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

    Opponents of the bill, like Lascaze, have said that banning the teaching of “unconscious” oppression or racism undermines “implicit bias” trainings for law enforcement that are meant to teach officers how to overcome their knee-jerk assumptions about people of color. Interest in those trainings has spiked since a wave of police killings of Black people, including George Floyd, sparked a summer of protests in 2020.

    In an exhaustive report with 48 suggestions to improve New Hampshire policing and racial bias, released last fall, the commission recommended the state implement implicit bias trainings for new police officers. That recommendation, which was approved by Gov. Chris Sununu and implemented through an executive order, has since been added to the curriculum of the New Hampshire Police Standards and Training Council, which teaches all new state and local police and corrections officers in the state.

    “Given the overwhelming strong support among LEACT members for this training on implicit bias, I am hopeful that the LEACT Commission will stand in unity against this provision, which damages efforts to create meaningful training aimed at repairing and improving the relationship between law enforcement and the communities of color they serve,” Lascaze wrote in his letter.

    Lascaze requested an emergency meeting of the commission, which has not met since August 2020. He pointed to a meeting of the Governor’s Advisory Council on Diversity and Inclusion, which voted last week to send a letter to Sununu expressing “grave concerns” with the bill and its potential impact on diversity efforts in the state.

    But Formella said an emergency meeting of the commission on the issue would not be appropriate.

    “While it is true that the Governor’s Advisory Council on Diversity and Inclusion met to discuss this language, and ultimately took a position on it, that group has a broader mission than the LEACT Commission, which is focused on enhancing transparency, accountability, and community relations in law enforcement,” Formella wrote.

    Formella added that it would not be appropriate for the Department of Justice to take a position on the bill, since it has already provided legal advice to Republican senators on the latest draft of the bill, and since it would have to defend the law in court should it be signed by Sununu.

    Finally, Formella argued the “divisive concepts” language would not have the effect on police trainings that Lascaze and others have claimed.

    “I think it is also important for me to note that in my view, the referenced language currently in the budget would not inhibit or have a detrimental impact on the implementation of any of the commission’s recommendations,” he wrote.

    The latest version of the “divisive concepts” language is contained in House Bill 2, the budget policy trailer bill that is set to be negotiated by the House and Senate next week in a committee of conference. 

    Formella’s comment is the latest example of the tricky dance some state officials have attempted over the controversial Republican bill. During the Governor’s Advisory Council on Diversity and Inclusion meeting, Department of Safety Commissioner Robert Quinn voted to send the letter expressing “grave concerns” with the bill, but did not elaborate. 

    Sununu had denounced an earlier version of the “divisive concepts” bill considered by the House, but he’s been supportive of an amended version from the Senate. That version was crafted with the advice of Formella.