How will the state’s new ‘divisive concepts’ law affect municipal training programs?

By: - July 21, 2021 6:15 am
Red brick exterior of Concord City Hall.

Officials in Concord and other municipalities are evaluating how they conduct trainings, some of which were implemented in the wake of George Floyd’s death. (Dave Cummings | New Hampshire Bulletin)

Since 2016, the city of Manchester has used a catchy mnemonic for its employee training: SPIRIT.

The acronym stands for Service, Pride, Integrity, Respect, Initiative, and Teamwork, and forms the backbone of the city’s training efforts for employees and supervisors. 

But this summer, organizers of the trainings have added a new disclaimer: The instructional sessions are “intended to adhere to the applicable law.” 

The trainings, city officials have specified, will not fall afoul of New Hampshire’s new anti-critical race theory law.

The new words constitute a minor legal update, one slide in a PowerPoint presentation that has remained the same. 

But the update is an acknowledgement of a new legal reality for cities and towns set in motion by the statute passed by the New Hampshire Legislature in June. With a new law in place, diversity and sensitivity trainings will have to be carried out even more carefully. 

New Hampshire’s new law, known to many by its previous moniker, the “divisive concepts law,” prohibits public employees from teaching certain concepts as fact, including the idea that one race, gender, or protected class is superior to another, or that a member of one class is “inherently” oppressive against another, “whether consciously or unconsciously.”

Anyone who feels targeted by the teaching of one of the prohibited concepts may take a claim to the state’s Commission for Human Rights, or in some cases, the courts. State employees may also bring an action against their employer as a protected whistleblower. 

Supporters of the law call it a common-sense guardrail; opponents argue that the prohibitions as written will have a “chilling effect” on implicit bias training and efforts to tackle structural racism in schools and government. 

Manchester, for now, is sticking to its training plans.

“The elements of the training have not changed,” said Emily Rice, the Manchester solicitor general. “And we do not believe that the ongoing training needs to be adjusted at this time. Of course, we recognize that there may be further guidance from courts, further guidance from the New Hampshire Municipal Association, (and) further guidance from the Attorney General’s Office.”

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Today, Manchester operates several employee training programs. There’s a cultural competence training, a voluntary, in-person training open to all employees; there’s an abridged version of that training included in orientation for all new municipal employees; and there’s a manager-specific training, where supervisors across the city’s departments receive “train the trainer” instruction to be able to carry out sessions of their own. 

In 2020, after the death of George Floyd sparked widespread protests calling for structural reforms to police and government, Manchester expanded its training. The city received a $20,000 grant from the Bean Foundation, which helped it develop the cultural competency program it runs today. 

A year later, with the new “divisive concepts” language signed into law, Rice and other officials in the city’s Human Resources department have pored over that nascent training to look for clashes with the new statute.

So far, they’ve found nothing that poses a concern. Rice says clarity is still needed. 

“I am hoping that what happens next is dialogue among the various stakeholders about what the law may mean, not only for the city of Manchester but generally,” Rice said. 

The deliberations of Manchester, New Hampshire’s largest municipality, come as towns and cities have taken different approaches. 

Officials in some cities, such as Concord and Keene, are also evaluating how they conduct trainings, some of which were implemented in the wake of George Floyd’s death.

Earlier this month, the Keene City Council voted to implement training for councilors on professional ethics. But the city’s attorney, Tom Mullins, has raised concerns that the new  “divisive concepts” law could rule out teaching about implicit bias, diversity, or inclusion altogether, the Keene Sentinel reported

Others are not concerned.

“We’ve been following it tangentially, but we don’t see that law as impacting our procedures, policies, and methods of operations,” said David Caron, town administrator for Derry.

Derry, the state’s fourth most populous town or city with 33,448 residents, does have employee trainings of its own, ranging in focus from workplace violence to sexual harassment. But Caron said he didn’t think the trainings included any element that could be threatened by the law.

To Caron, the law poses questions affecting the town’s schools more than its city government. 

“That’s more, from our perspective, an educational issue,” he said. 

Still, Caron, like other town officials, is watching for developments. As people in the state begin to bring forward complaints and actions under the law – whether over the course of months or years – the parameters of the new statute will come into focus.

“We’re going to let it settle out a bit, see where it lands,” Caron said. “And if we do need to adjust our policy and procedures, we’ll do so.”

One state official has been adamant that the new “divisive concepts” statute does not pose a need for state employees to panic. 

Ahni Malachi, executive director of the Commission for Human Rights, which has the responsibility to adjudicate many of the claims brought forward under the law, says diversity trainings should not be affected. 

“Despite some misinformation out there, the new language placed as a budget amendment does not place a limit on the important discussions to be had across the state, and this new language took out the phrase ‘divisive concepts’ as it worked its way through the legislative process,” Malachi said in a statement June 29.

“There are important conversations needed to be had to enhance our understanding of each other, from a cultural and ethnic perspective,” Malachi added. “. . . The combined efforts of many in the state will continue to move forward in understanding the statutory change while continuing to do the important work we have been called upon to do, and I will be meeting with Attorney General John Formella and the Department of Justice to discuss the development of guidance for state agencies and others that makes clear that this legislation will not prohibit necessary conversations and advocacy on issues related to diversity and inclusion.”

Malachi’s statement came the day after a majority of members of the Governor’s Council on Diversity and Inclusion – the panel founded in 2017 that Malachi chairs – resigned in protest of Gov. Chris Sununu’s decision to sign the new language into law. Those members expressed concern that the new law would hinder diversity trainings and squelch conversations. 

Meanwhile, city officials like Rice are waiting on the guidance alluded to by Malachi, which is still being developed by the Attorney General’s Office and the Department of Education. 

City and town officials are also in touch with the New Hampshire Municipal Association, which has been monitoring the bill. 

But how the law interacts with municipal training programs could be affected by another important entity, Rice said: the employees themselves. How state and municipal employees interpret the new law, and whether they agree with it or strongly oppose it, could affect how the trainings – and the law – are interpreted. 

“Any entity that’s presenting this training is likely, I think, to receive feedback from both trainers and participants about the views of the law that they want to bring to the table,” Rice said. “So we’re in the very, very, very early stages at this point.”

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel.

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