The seven commissioners and five investigators at the Commission for Human Rights have traditionally looked into discrimination in areas such as housing, employment, and public accommodations. (Dana Wormald | New Hampshire Bulletin)
Ahni Malachi doesn’t have time to wade into political disputes. As executive director of the New Hampshire Commission for Human Rights, Malachi, her staff, and her panel of commissioners field around 200 allegations of discrimination every year – evaluating claims by tenants, employees, and patrons.
“I kind of come in every day and put my head down and get my little stuff done,” she said.
This year might put that approach to the test.
As politicians both local and national debate the academic concept of “critical race theory” and its place in American schools, a new law passed by the New Hampshire Legislature puts the hot-button national issue squarely in the commission’s lap.
The law, passed into the state budget bill, prohibits public school teachers from carrying out certain lessons around race, gender, and systematic oppression, and empowers parents to file complaints about teachings that they find discriminatory on the basis of race.
Now, a new webform published by the New Hampshire Department of Education allows parents to easily submit those complaints directly to the Commission for Human Rights. If a parent, student, or educator observes an educator teaching one of the prohibited items, they can fill out the new questionnaire and describe their issue to the commission.
The new anti-discrimination categories, introduced in the budget bill, have been consistently controversial. Republican supporters say the rules will help remove critical race theory and other teaching frameworks regarding structural oppression from public schools; Democrats say they will squelch nuanced instruction and discussion around past and present discrimination.
But after a year of vehement debate, last week’s release of the webform brings the theoretical anti-discriminaton language closer to having an actual impact.
And it could raise the profile of the Commission for Human Rights. The law empowers the commission – not the Department of Education or the teacher’s school district – to start an initial investigation of wrongdoing under the law. And depending on what the commission does, the claim could go on to New Hampshire superior court, to the State Board of Education for a disciplinary hearing, or nowhere at all.
The political fervor appeared to hit new heights last week after the release of the webform. A conservative advocacy group, Moms for Liberty New Hampshire, pledged Friday to give $500 “for the person that first successfully catches a public school teacher breaking this law.” The National Education Association of New Hampshire, a teachers union, accused the department of empowering “state-sanctioned bounty hunters.”
But amid the furor, Malachi says she and her investigators are going to treat complaints the way they always have.
“We don’t represent either party. Our job is to represent the law,” she said. “We call balls and strikes. We’re not in favor or against any of that. If the wording is added to our statutes by the determination of the Legislature, then we at the commission follow said law.”
The complaint process
For decades, the commission has investigated discrimination claims and issued decisions that include remedies, such as fines. Its seven commissioners and five investigators have traditionally looked into discrimination in areas such as housing, employment, and public accommodations.
But this year’s teaching anti-discrimination bill, which applies to public K-12 schools, public universities, and public employers, opens a new area of jurisdiction for the body.
The new webform, first published Nov. 10, specifically allows parents to lodge complaints that their child’s teacher or school is teaching one of the prohibited items in the new law, previously known as the “divisive concepts” law.
The complaints can fall into four categories: that the teacher taught that one identified group is inherently superior or inferior to another; that one group is inherently racist or oppressive; that one group should be discriminated against; or that identified groups should not be treated equally.
Under the process clarified by the department last week, parents who have a concern may fill out a form identifying the school or teacher in question, the category they believe has been violated, and a brief description of what happened. That form gets sent to the commission, whose staff interviews the complainant and determines whether their concern rises to the level of a potential violation of the statute.
If it does, the commission can turn the parent’s submission into a formal charge; if it doesn’t, the matter is dismissed. A formal charge will cause the teacher to be notified of the accusation and set in motion an investigation.
Still, Malachi stressed that formal action by the committee is not a guaranteed outcome. The commission provides avenues for mediation and settlements that could give the parties what they want, she said.
“Even though there’s a questionnaire or even if a charge is filed, it could simply be a misunderstanding,” she said. “Our investigators are trained to do negotiated settlements. … We’re open to all of those forms of problem-solving.”
A ‘chilling effect’
Still, the new oversight process could carry consequences: According to the new law, decisions by the commission could have a direct impact on a teacher’s continued employment.
A decision by the commission against a teacher “shall be considered a violation of the educator code of conduct that justifies disciplinary sanction by the State Board of Education,” the new law states. The disciplinary action could include the loss of the teacher’s license.
The law also allows parents to take their concerns to superior court; decisions by that body could also have licensure implications for teachers.
With such high stakes, teachers unions have pushed back at the Department of Education’s inclusion of the webform.
“It was bad enough that the law tried to find a problem that doesn’t exist; no teacher in New Hampshire teaches that any group is inherently superior or inferior to another,” said Deb Howes, the president of the New Hampshire chapter of the American Federation of Teachers. “That false flag has now been made worse with Education Commissioner Frank Edelblut launching a webpage to encourage parents to file complaints against teachers who allegedly teach so-called divisive concepts.”
Howes and other teachers have warned the new laws will carry a “chilling effect.” The potential serious professional consequences that come with accidentally violating the new law will incentivize teachers to avoid certain topics altogether, critics have argued.
In an interview, Edelblut said that the new webform is merely a way to give parents a standardized way to submit concerns, and noted that the forms are based on portals the commission operates for other forms of discrimination.
And Edelblut said that a list of guidelines issued by the state’s attorney general earlier this year to address questions over the anti-discrimination laws should clarify the matter for teachers. Those guidelines state that while concepts such as white privilege and patriarchal structures cannot be taught as fact, teachers can teach about historical and modern-day events involving race, gender, sexual orientation, and more.
“We’ve been very clear and helpful by putting out our Q&A documents both for the general public employees as well as in the education settings,” he said. “We believe that those helped clarify what is allowable and what is not allowable under the law.”
Still, the commission does not have any precedents in place for how to interpret the new law, a reality that teachers say makes them wary.
Edelblut argued the mere existence of the new anti-discrimination laws and the new reporting tool does not guarantee that the commission is going to be flooded in cases.
“Maybe our teachers are not gonna discriminate against students according to the law and then we’ll just have a few cases,” he said. “Do people perceive that there’s a whole bunch of violations going on out there or are there a whole bunch of violations going on out there? I don’t know the answer to that.”
Malachi says she isn’t sure what the volume is going to look like, and whether the political environment could increase complaints. But she argued that the commission has a robust intake and investigation process that should weed out any bad-faith claims. The penalty for bringing a false charge is perjury, she noted.
“The law is here to protect people in the stated categories from what’s written in (House Bill 2),” she said. “And I would hope that the investigators, as we move through the process, would be able to determine something that was made up from something that was truthful.”
‘Rooted in fear’
For one teacher, the law has already prompted subtle changes in her teaching style.
When students of Jocelyn Merrill’s ninth-grade English class in Nashua read “To Kill A Mockingbird,” they grapple with its larger themes – the American justice system and 20th-century racial prejudice.
But moving forward, Merrill is going to be more careful with how she presents the book. In the past, she’s used the story to talk about the newer concept of systemic racism, and the notion that racism can seep into institutions and exists beyond one person making explicitly hateful statements. The new law has changed that.
“If you’re discussing who has more power within a society, that’s where it sounds like you have to be really careful with what you say,” she said.
This year, Merrill plans to retreat to a more rudimentary definition of racism, defining it only when it comes to distinct acts by bigoted individuals.
“Last year, I used that newer definition of racism, and I had to take a step back this year and be like, ‘Oh, like I guess that does talk about systems of power,’” she said. “So I guess I can’t put that on there anymore. So I ended up just deleting it.”
Merrill never received any explicit instruction from the Nashua School District for how to interpret the new law. But in conversations with other teachers and in her own interpretation, she’s staying careful when it comes to certain subjects.
The new portal has put her and other teachers on edge. “It just continues to build this distrust,” she said.
Still, Merrill said she hasn’t experienced any issues from parents – nor has she ever in her decade of teaching. In the new environment around education, fostering connections with the students she teaches has become even more important, she said.
“I don’t think the majority of parents are going to be out there reporting us or looking for us to make a mistake. So I do feel like a lot of this just goes back to being rooted in fear,” she said. “But of course, it is still scary to think that there are people out there possibly who are watching and just waiting for us to say the wrong thing or to give the wrong material.”
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