State releases ‘divisive concepts’ guidance for educators, public employers

This story was updated July 22, 2021 at 5:30 p.m. with a statement from NEA-NH.

Public school educators will not be violating the state’s new “divisive concepts” law if their lessons on slavery, the civil rights movement, and the treatment of marginalized people leave some students feeling “uncomfortable,” according to guidance issued Wednesday evening by the state Attorney General’s Office. 

“It is important to note that education related to racism, sexism, and other practices or beliefs that have harmed or continue to harm certain identified groups may make students, faculty, or parents uncomfortable,” the guidance said. “These lessons may encourage or prompt students to reflect upon whether and how racism, sexism, or other practices have or have not affected their lives. Even discussion of historical practices and their lingering impact upon different identified groups can cause this discomfort.”

The state issued separate guidance Wednesday for public employers. 

The new law, passed as part of the state budget, prohibits schools from teaching that one group of people is inherently racist, superior, or inferior to people of another group. Teachers across the state have voiced uncertainty and fear about what topics and discussions are off limits.

The three-page Q-and-A guide written for educators clarifies how complaints will be handled and whom the new law covers. But it is unlikely to settle the debate over what can and cannot be taught because it speaks broadly and not specifically. 

“The comments included in the document fall short of what we were expecting,” said Megan Tuttle, NEA-New Hampshire president. “Two weeks ago, we sent a set of questions to the Attorney General’s office seeking specific example-based guidance on the implementation of the divisive concepts law within public school districts and public institutions of higher education. We still expect, and are awaiting, a response from his office which provides our members with concrete, practical examples of what, in his view, is allowed and prohibited under the law.”

Tuttle added, “licenses and livelihoods are at risk. Generalities from the state attorney general and education commissioner are simply not sufficient.”

The law, according to the guidance, does not prohibit the teaching of historical subjects nor the discussion of current events like “the Black Lives Matter movement, efforts to promote equality and inclusion, or other contemporary events that impact certain identified groups.” 

And educators can still teach “the historical existence of ideas and subjects identified in the new law,” including discrimination based on race, sex, gender, disability, sexual orientation, or religion. 

But the Attorney General’s Office did not say how or whether implicit bias – which is at the center of many cases of discrimination – can be included in discussions. 

The law pertains to classroom teaching, extracurricular activities, and the training of staff and volunteers for both K-12 and public colleges and universities. Parents who object to specific coursework or discussions can exempt their students from participating.  

A student or parent who believes an educator has violated the new law can file a complaint with the New Hampshire Commission for Human Rights, the Attorney General’s Office, or file a lawsuit in superior court. An educator who violates the law may face disciplinary action by the State Board of Education.

The guidance does not say how claims will be investigated. 

“We are happy to be able to release this much-anticipated guidance,” Department of Education Commissioner Frank Edelblut said Wednesday. “Our goal is to provide clarity around the law and (we) will continue to work with districts to help support them in the implementation.”