Teachers, public school advocates push for repeal of ‘divisive concepts’ law

By: - January 13, 2023 6:30 am

The House Education Committee meets in Representatives Hall to hear testimony on a bill seeking to repeal the “divisive concepts” teaching law on Jan. 12, 2023. (Screenshot)

Persuasive research papers are a yearly assignment in David Scannell’s English classes, and grading them is part of the job. But last school year, the Milford High School teacher faced a new challenge.

The New Hampshire Legislature had passed a law in 2021 barring public school teachers from advocating for certain positions around race, gender, and other protected classes. Now, Scannell was unclear how to handle some of his students’ assignments.

One had asked to write an essay arguing in favor of affirmative action, Scannell recounted at the State House Thursday. But the new law appeared to prevent teachers from advocating for affirmative action. 

If Scannell gave the final paper a good grade, would he be falling afoul of the new law? And knowing that future conundrum, should he approve the student’s topic in the first place?

Another student requested to write a paper on the merits of “American exceptionalism.” 

“Under the ‘divisive concepts’ law, is a teacher grading such a paper required to fail the student if he determines there (isn’t) any merit to American exceptionalism?” Scannell asked.

In the end, Scannell approved the topics. But he said the dilemma is representative of what many teachers have wrestled with since the passage of the law. 

Over a multi-hour hearing Thursday, educators and public school advocates gathered in Representatives Hall to argue that the 2021 law is overly vague and punitive, and to advocate for a bill from Democrats to repeal the law. 

Opponents of the law said it had caused teachers to avoid addressing certain topics or subject matter for fear of receiving parent or student complaints. 

Supporters of the law, who included Republicans and some members of the public, said the teachers’ concerns were overblown.

“The testimonies we heard today were pure myths and scare tactics,” said House Majority Leader Jason Osborne, an Auburn Republican, and Deputy Majority Leader Jim Kofalt, a Wilton Republican, in a joint statement “The current law does nothing to prohibit the teaching of racism and its effects throughout history.”

The Democrats’ bill, House Bill 61, would repeal all of the statutory language added by the Legislature in 2021. And it would add new language stipulating that teachers will not face civil liability for instruction around “the historical or current experiences of any group that is protected from discrimination” under the existing state law. Sponsored by Rep. Peter Petrigno, a Milford Democrat, the bill stipulates that teachers are not barred from giving those lessons.

“Teachers just want to teach, as we always have, without the interference of the state, without the fear of an inquisition, or the loss of our credentials,” said Petrigno, a retired social studies teacher. “All because maybe a student misinterpreted the class discussion.”

New Hampshire’s new teaching restrictions – known to opponents as the “divisive concepts law” – prevent four separate types of instruction. School staff and public employees may not advocate that a person of one race, gender identity, sexual orientation, or other protected class is inherently superior to another. They may not teach that one group is inherently oppressive or prejudiced against another. They may not argue for different treatments based on a person’s protected characteristics. And they may not argue that people can’t treat people of different characteristics equally. 

Those teachers who do can face civil claims in superior court and procedures before the state’s Human Rights Commission – and can potentially have their credentials revoked.

Republicans and supporters of the law have argued it is intended to prevent students and public employees from feeling singled out for their race and labeled as inherently oppressive against or inferior to others. Democrats and opponents say the prohibitions are vaguely worded but carry harsh potential professional consequences if teachers violate them, creating uncertainty for them in the classroom. 

Thursday’s hearing came hours before the U.S. District Court of New Hampshire ruled in favor of moving forward a lawsuit brought by the ACLU of New Hampshire and teachers unions against the law. In a decision issued Thursday afternoon, Judge Paul Barbadoro ruled against attempts by the state to dismiss the lawsuit, allowing it to move forward into discovery in the coming months. 

Educators and administrators say the new law has introduced confusion. 

Rachael Blansett, the Diversity, Equity, Inclusion, and Justice coordinator at Oyster River Cooperative School District in Durham, said the law had demoralized teachers in her district, particularly those teaching humanities subjects. 

“This not only hurts our teachers or students, but also the state at large,” she said. “We should want our teachers not to live in fear by doing their jobs and doing their jobs effectively incorrectly. Especially in light of a teacher shortage.” 

When she left school to testify for repealing the bill Thursday, Blansett said she had the blessing of district higher-ups. 

“My superintendent said, ‘Well, of course; that’s your job,’” Blansett said. 

Others said the passage of the law had emboldened some people to engage in racial attacks. Petrigno, the Democrat sponsoring the repeal bill, read from an email he had received from a person calling his effort “anti-white.” 

And Tina Kim Philibotte, the chief equity officer for the Manchester School District, recalled the treatment her high-school age daughter received after testifying against the 2021 law as it worked though the Legislature. 

Philibotte, who is Korean American, said that after her daughter’s testimony someone posted a clip of the remarks online and identified the high school she attended. 

“Within seconds she started receiving death threats,” Philibotte recalled through tears. “Throughout the state. From throughout the country. The most visceral one that stands out for me said, ‘I’d like to see an exit wound leave your head.’” 

The reaction had summoned Philibotte’s memories of her own childhood as an Asian American student in New Hampshire in the 1980s. And she argued the law had encouraged that behavior, even if it wasn’t intended to. 

“What happened to my daughter, the fear that she had … that silencing, that chill on speech: What she feared then, now we’re living it,” Philibotte said. “And that silence is real.” 

Others who showed up said the concern and confusion was misplaced. Rep. Keith Ammon, a New Boston Republican, read aloud the text of the law itself, arguing that it was easy to follow and that it was itself intended to address potential discrimination. 

And he pointed to language in the law that clarifies that it should not be interpreted to prohibit instruction on the “historical existence of ideas and subjects identified in this section.”

Addressing confused teachers, Ammon asked: “What have they done to engage the Department of Education to clear up those uncertainties?”

He added: “Unfortunately, there is a need among some to try to instill something called collective guilt, where they think it’s important to teach some kids that because of the way they’re born, they should feel guilty. And it could be that that’s the source of the confusion.”

Rep. Alicia Lekas, a Hudson Republican, agreed, saying she was unsure what in the law prevents teachers from discussing the Civil Rights movement and racial history. “Talking about a topic and teaching that somebody is inherently better than another are two different things.”

Sally Staude, a Dover resident, agreed. “I can’t hear anybody giving an example of when discrimination specifically is occurring in the schools with what the teachers can teach,” she said. “… I’d love to know some examples of real teachers who have been prosecuted and persecuted or prosecuted for teaching any historical information.” 

But educators said it was the fear of reprisals that had led to self-censorship. 

Deborah Nelson, a former history teacher and current school board board member in Hanover, said the law brought to mind the lesson she used to give on McCarthyism. In one video she showed students, a New Hampshire teacher recounted worrying “that something she said at the time might prompt students to report her and that she could lose her job.”

“I remember my students being appalled by what they thought was her paranoia,” Nelson said. “And I had to clarify that class discussion could be reported to outside groups, and teachers could be punished and lose their jobs. Although I reassured them that those days were in the past.”


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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. Email: [email protected]