Defending ‘divisive concepts’ statute, state argues law is not vague

By: - March 29, 2022 3:57 pm
Exterior of the New Hampshire Department of Education.

Under the law, teachers can face lawsuits in superior court and the Commission for Human Rights, and can be disciplined by the State Board of Education for violating the statute. (Dave Cummings | New Hampshire Bulletin)

New Hampshire’s new “freedom from discrimination” law barring certain teachings around race and class in public schools is legally sound and not overly vague, the Department of Justice argued in a federal court filing Friday. 

In a rebuttal to a pair of lawsuits filed in U.S. District Court of New Hampshire in Concord against Commissioner Frank Edelblut and the state last December, the department sought to dismiss claims that the law is too murkily defined for teachers to follow it, and that it is an impingement on educators’ right to speech.

“The plaintiffs’ vagueness claims fail because the new anti-discrimination provisions are not vague on their face,” the department wrote. “The language of the provisions, particularly when coupled with guidance issued by the Department of Education, the Commission for Human Rights, and the Department of Justice, demonstrates that the new anti-discrimination provisions provide a discernible, objective standard for what conduct is proscribed.” 

Passed into law via the state budget last year, the statute bars public school staff and public employees from teaching that people of one race, gender, or other identifying class are “inherently superior or inferior” to those of another class; that people of one class are “inherently racist” or oppressive against another class; or that people of different classes should receive different or adverse treatment. 

Supporters have said the law prevents students from being targeted as oppressors for their race or gender; opponents have said it squelches nuanced conversations on privilege, oppression, and bias. 

Two state teachers’ unions filed lawsuits against the law in December, arguing that it has created an unconstitutional “chilling effect” by including poorly defined prohibitions, causing teachers to avoid topics entirely to escape potential professional consequences. Under the law, teachers can face lawsuits in superior court and the Commission for Human Rights, and can be disciplined by the State Board of Education for violating the statute. 

Friday’s filing is the first response from the state in either lawsuit. The Department of Justice argued first that the lawsuit was improper, pointing to case law suggesting that a federal court could strike down the law only if it were a violation of federal law – not state law. 

The state also pushed back on the claims of First Amendment violations, arguing teachers and other government employees are not entitled to the same free speech protections if the speech is part of the teacher’s “official duties.” 

“If the answer is yes, then the speech is not protected by the First Amendment,” the department stated in the lawsuit. Those official duties included what is taught to students, the state argued.

The state cited a 2010 U.S. Circuit Court of Appeals case, Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, which held that: “[a]s with any other individual in the community, [teachers have] no more free-speech right to dictate the school’s curriculum than [they have] to obtain a platform – a teaching position – in the first instance for communicating [their] preferred list of books and teaching methods.” 

And the state argued against claims that the state statute is unconstitutionally vague, contending that the language in the statute clearly lays out four categories and bars teachers from “teaching, instructing, or inculcating any public school student.” And in one area of the law that might be deemed vague – barring teachers from instructing that anyone of a certain race, gender, or other class is “inherently racist, sexist, or oppressive, whether consciously or unconsciously” – the state pointed to a “frequently asked questions” sheet released by the Department of Education and Department of Justice that seeks to define the word “inherent.”

In its filing, the state noted that its FAQ sheet has made “unambiguously clear” that the statute does not prevent instruction about racism; topics that make people uncomfortable; historical events “that linger into the present day”; or the way in which psychological development can create implicit bias. 

Plaintiffs in the lawsuit pushed back at the filing Tuesday.

“The State’s response outright ignores the real chill that has occurred in New Hampshire classrooms since this law came into effect,” wrote plaintiffs Andres Mejia, director of diversity, equity, inclusion, and justice for the Exeter Region Cooperative School District, and Christina Kim Philibotte, chief equity officer for the Manchester School District, in a joint statement. “This law chills the very type of diversity, equity, and inclusion work that is absolutely necessary to ensure that each student is seen, heard, and feels a sense of belonging within their school community, especially as New Hampshire becomes more diverse.”

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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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