U.S. District Court allows ‘banned concepts’ lawsuit to proceed

By: - January 13, 2023 1:39 pm

The United States Courthouse in Concord on Jan. 13, 2023. (Ethan DeWitt | New Hampshire Bulletin)

A lawsuit brought by state teachers unions and the ACLU of New Hampshire against a law banning certain instruction in the classroom around race, gender, and equity will move forward to trial, after the U.S. District Court rejected an attempt to dismiss it.

In an order issued Thursday, District Court Judge Paul Barbadoro struck down the state’s attempt to throw out the lawsuit due to a lack of a valid claim. That decision means the case will move next into discovery and toward a full trial.

“Given the severe consequences that teachers face if they are found to have taught or advocated a banned concept, plaintiffs have pleaded a plausible claim that the amendments are unconstitutionally vague,” Barbadoro wrote. 

The ACLU, the American Federation of Teachers of New Hampshire, the National Education Association, and a handful of individual educators sued the state over the law in December 2021. The law bars teachers and state employees from advocating for a number of topics, including that a person of one race, gender, sexual orientation, or other characteristic is superior or inferior to another, and that people of one characteristic are inherently oppressive of others. 

The teachers unions say the law is too vaguely worded to know how to follow, and that the high penalties for teachers in violation – which can include civil lawsuits and the loss of credentials – mean that educators must self-censor to avoid potentially falling afoul of it. The state has countered that the law is not vaguely constructed, pointing to guidance issued by the Attorney General’s Office over how to interpret it, and argued that public employees do not have full freedom of speech when it comes to their jobs.

During an oral argument in September over the state’s motion to dismiss the lawsuit, plaintiffs made two main arguments that the law violates the U.S. Constitution: first that it violated teachers’ right to free speech under the First Amendment, and second that it violated a “vagueness doctrine” under the Fourteenth Amendment. That doctrine holds that criminal or civil laws can be found unconstitutional if they are so vague that enforcement is unclear, violating due process. 

The state contended that those constitutional claims do not apply and should be dismissed before a trial.

In his ruling, Barbadoro decided not to dismiss the plaintiffs’ vagueness arguments, but he did partially dismiss the free speech arguments. 

Barbadoro held that the plaintiffs had made a plausible case for vagueness – the standard for allowing the lawsuit to proceed – largely because the law does not clearly establish what specifically can and can’t be taught.

“Although the amendments identify certain core concepts that may not be taught, they do not give either teachers or enforcers the guidance they need to find the line between what the amendments prohibit and what they permit,” Barbadoro wrote. 

He added that the lack of a requirement that teachers violate the law “knowingly” or “purposefully” in order to be punished – a condition known as a scientist requirement – means that teachers can be penalized for accidentally violating the law. That reality, he wrote, bolsters the plaintiffs’ case that the law is too vague.

And Barbadoro pushed back on the state’s argument that a law is only unconstitutionally vague if it is shown to be vague in all applications. Even if New Hampshire’s law could be interpreted in one specific way, the law may still be too vague to follow, Barbadoro wrote, citing the recent U.S. Supreme Court case of Johnson v. U.S. Whether it is too vague will come down to what is argued at the trial. 

When it came to plaintiffs’ free speech arguments, Barbadoro was more sympathetic to the state. He cited the recent U.S. Supreme Court case of Garcetti v. Ceballos, which held that public officials are not fully protected under the First Amendment for speech they make during their official duties – but do have free speech for private activities. 

Public school teachers in middle and high schools are expected to follow curriculum and can’t make free speech claims if they choose not to, Barbadoro wrote. But he left open the possibility that New Hampshire’s law could violate teachers’ free speech rights during extracurricular activities.

Thursday’s ruling moved the case into the discovery period, which attorneys for the plaintiffs say they will likely use to attempt to uncover details around how state agencies investigate and pursue complaints against teachers under New Hampshire’s law. 

That discovery process will likely happen on an expedited timeline, Barbadoro said during the September oral arguments, so that a full hearing can happen quickly.

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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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