Teachers, parents file lawsuit over ‘divisive concepts’ law

Three teachers and two parents are suing the state of New Hampshire over a law limiting certain teachings in public schools, in an action coordinated by the American Federation of Teachers. 

In a 52-page filing to the U.S. District Court of New Hampshire in Concord Monday, the New Hampshire affiliate of the teachers union argued that the court should strike down the new law for being unconstitutionally vague – or at least issue clarification. 

“The overbreadth and ambiguity of the statute makes it impossible for teachers to follow and highly susceptible to arbitrary and discriminatory enforcement,” the lawsuit states. 

“The ‘culture wars,’” the suit adds later, “have no place in New Hampshire’s classrooms.” 

The new statute, labeled an anti-discrimination law, prohibits teachers and state employees from teaching four concepts: that a person in one protected class is inherently superior to another; that a person in one protected class is inherently racist or oppressive, even unconsciously; that an individual should be treated differently for one of those characteristics; and that people “cannot and should not attempt to treat others without regard to” their characteristics. 

Supporters of the law say the bans are designed to protect students from feeling singled out in the classroom and to prevent teachers from teaching blanket pronouncements of a person’s gender, race, or other characteristics. 

Critics – who have included Democrats and teachers – argue the teaching bans will squelch nuanced discussion of implicit bias and structural racism, and create a “chilling effect” around the discussion of history and current events. 

The law carries potential professional consequences for teachers: Parents may sue teachers in superior court, or bring an action against them at the state Commission for Human Rights. If either of those processes resulted in a decision against the teacher, the State Board of Education could revoke the teacher’s credentials. 

Among the plaintiffs to the lawsuit filed Monday are John Dube, a high school U.S. history and AP U.S. history teacher at Timberlane Regional High School; Ryan Richman, a high school world history teacher also at Timberland; and Jocelyn Merrill, a ninth-grade English teacher at Nashua High School North.

All three teachers argue the vagueness of the law is preventing them from carrying out their usual teaching curricula out of fear they will be in violation. 

Dube was the target of a harassment campaign, the pleading states. After signing an online petition vowing to teach an “honest history,” Dube’s name was published by a right-wing group online, which prompted a flood of threats and obscenities, according to the lawsuit. The activity prompted Dube to install personal security software and seek federal and local law enforcement protection, the lawsuit states.

Two other plaintiffs, Kimberly Green Elliott and Meghan Evelyn Durden, are teachers who are suing as parents out of concern for the future of their children’s education. Elliott argued her son, a student at Merrimack High School, had already seen one of his teachers “censor” themselves on one topic since the law has been passed. 

None of the plaintiffs have faced professional consequences due to the law. But the lawsuit is centered around the alleged vagueness of the new statute, and the difficulties that has posed for teachers. The lack of clarity for teachers violates the 14th Amendment of the U.S. Constitution, the lawsuit argues. 

Since the law was passed, the complaint notes, New Hampshire’s Attorney General’s Office has published two “frequently asked questions” articles seeking to clarify how it would affect teachers’ lessons. But those have not answered all teachers’ concerns, and are evidence that the law itself is not clear, Monday’s filing argues. 

The decision to attack the vagueness of the law is one that has precedent in case law, said Charles Moerdler, an attorney with Stroock & Stroock & Lavan in New York.

“The federal Constitution has long been enforced as permitting under the 14th Amendment … invalidation of statues that are void because they’re vague: they can’t be complied with,” Moerdler said in a conference call with members of the press Monday. 

“…When you have a situation like this, where even the attorney general and the commissioner of Human Rights feels compelled to try and explain away some of the problems even though they don’t have the power legally to do so, when you have that, you’ve got a problem,” Moerdler said. 

The lawsuit also argues that the new law violates a teacher’s right to free speech in the state and federal constitutions. 

Joining in on the press call, Randi Weingarten, the president of the national American Federation of Teachers, called the new law a “Hobson’s choice” for humanities teachers. And she said the prohibition on teaching that certain classes of citizens are advantaged over others or should be taught differently could make it difficult to explain in the classroom the Americans with Disabilities Act or the gender pay gap. 

“People are terrified that they cannot answer a question from a parent or from a student that borders on any history or current event or any piece of literature that impacts upon any of the words that are in the statute,” Weingarten said. 

The Department of Education declined to comment on the lawsuit Monday, with a spokeswoman citing the agency’s practice of not commenting on pending litigation. 

But Senate Majority Leader Jeb Bradley, a Wolfeboro Republican, dismissed the lawsuit Monday and defended the statute, which he helped craft in the final days of negotiations over the state budget.

“Clearly any instruction that teaches students they are inferior or superior due to these characteristics is discrimination, and it’s terribly disappointing that this lawsuit has even been filed,” Bradley said.