Four takeaways from depositions in the ‘divisive concepts’ lawsuit

By: - August 29, 2023 5:00 am

The U.S. District Court, District of New Hampshire in Concord on Monday, Aug. 28, 2023. (Ethan DeWitt | New Hampshire Bulletin)

Editor’s note: Read the depositions in full by clicking the links at the end of the article. 

Since New Hampshire lawmakers passed a law barring teachers and state employees from advocating for certain concepts around race, sex, and other characteristics, enforcement has been quiet. In two years, just one case has made it onto a docket with the state’s Commission for Human Rights.

But a federal lawsuit filed against the bill by several school diversity officials, teachers unions, and the American Civil Liberties Union of New Hampshire is continuing in the U.S. District Court, District of New Hampshire in Concord. And earlier this month, plaintiffs in the case released a string of depositions from key officials, including Department of Education Commissioner Frank Edelblut and Commission for Human Rights Executive Director Ahni Malachi. 

The law, known to some as the “divisive concepts” law, bars teachers from espousing ideas that people of one race, gender, sexual orientation, age, or other protected characteristic are inherently superior to or discriminatory toward a person with a different characteristic, or that they should be treated differently. Proponents say it will prevent instruction that singles out students of one race or gender; opponents say the law is vague and will prevent nuanced classroom discussion and instruction. 

Here’s what some of the depositions – conducted this spring – reveal about how the law has been carried out. 

The Department of Education has no direct role in enforcing the law. But it still fields complaints from parents.

The new law has direct implications for teachers’ careers: A finding of fault could result in the State Board of Education suspending or revoking their teaching licenses. 

But the process to get there is complex.

For ordinary code of conduct complaints against teachers, the Department of Education investigates and sometimes pursues a formula inquiry. Under the divisive concepts law, the department does not initially have a direct role; any complaints must be submitted in writing by a complainant to the Commission for Human Rights first, and adjudicated there.

Only if the commission has issued a finding against a teacher does the department step in and conduct its own investigation. That investigation may then be accompanied by a recommendation to the State Board of Education, which can choose to take action against an educator’s credentials. 

“It’s not my job, it’s not within the purview of my responsibility to adjudicate whether or not certain actions by an educator would be some type of an action under (the new law),” said Edelblut in his deposition. 

In his own testimony, Richard Farrell, an investigator with the department, stated that the department can investigate violations of the teacher’s code of conduct only; he does not act upon any complaints sent in relating to violations of the new “Freedom from Discrimination” law.

But that hasn’t stopped parents from sending complaints about school instruction material to the education commissioner. And it hasn’t prevented Edelblut from looking into those complaints through his capacity as commissioner. 

In his testimony, Edelblut said he often speaks personally to parents who reach out to him over their concerns with a teacher’s instruction or materials. He often will pass on those complaints to Farrell. And he will also sometimes reach out to school superintendents to make them aware of the complaint and let them make their own decisions.

In one example, a parent at Kensington Elementary School contacted Edelblut about the use of “A Good Kind of Trouble” in a classroom, according to the deposition. 

“… It is a terrible book that shames ‘white’ children into thinking they are the oppressors in society,” the parent wrote, according to the deposition. “This book talks about gunshots, rioting, looting, burning down buildings. It also made our daughter very uncomfortable and scared.”

Edelblut read the book himself, which features a Black middle schooler navigating life and joining the Black Lives Matter movement. Edelblut, who called the book “very poorly written,” contacted the superintendent to raise the parent’s concerns; he later spoke to the assistant superintendents and principal of the school during an event there to discuss the book, he testified. The department took no further action, he said. 

On another occasion, a parent of a student at Hillsboro-Deering High School, Betsy Harrington, brought to Edelblut’s attention the existence of a book on the school eBook app Sora, “The Lesbiana’s Guide to Catholic School,” that featured sexual content and that was accessible by younger students via phone, the deposition said. Edelblut worked with the school district and the company to try to clarify how to install age controls for the books in that district. 

In a third instance, Edelblut spoke to a Republican lawmaker, Rep. Louise Andrus of Salisbury, who was concerned about certain book titles in a school district, according to the deposition. Edelblut suggested that Andrus remind the superintendent that the titles would likely be subject to a right-to-know request in order to encourage faster cooperation. 

In April 2022, Edelblut released an op-ed with an accompanying document filled with photos and screenshots of material that he said concerned parents had sent him, including classroom posters promoting LGBTQ+ rights and Black Lives Matter. Asked in an interview at the time, he said the release was not meant to suggest that he thought the instruction violated the new anti-discrimination law.

“The point of these examples is really to flag or highlight content that individuals among my constituencies have brought to our attention that they believe may conflict with value systems of the families of the children that are in the schools,” he said in his deposition, when asked about the op-ed. 

He added later: “My hope would be that the teacher would recognize that they, too, have a parent who is uncomfortable with some of the matters that are taking place in the school, and they would work with that parent to try to resolve those.”

Commissioner Edelblut has the final say over whether the department pursues code of conduct investigations.

When Edelblut passes on parental complaints of teacher behavior to Farrell, Farrell can choose to begin an informal investigation into the matter and decide whether it necessitates a full case.

If the complaint relates to the “divisive concepts” law, Farrell will not take action, he said. But if it rises to the level of a potential violation of the state’s code of conduct for educators, he will carry out an investigation. That preliminary probe is just to gather facts; later, Farrell can open a formal case and pursue a more extensive investigation.

Either way, the commissioner makes the final call over what happens to the case, Farrell and Edelblut testified. Edelblut, Farrell, and Attorney Diana Fenton with the department’s office of governance meet monthly to review the cases that have come before them and make a decision on whether to advance the cases to the State Board of Education. 

“I think, ultimately, the buck stops with the commissioner, but the effort itself is a collaborative effort,” said Farrell. 

Edelblut agreed; to have Farrell operate independently of the commissioner “would be contradictory to our operation and function as an agency.”

In weighing the divisive concepts law, content should be seen separately from instruction, Edelblut says.

Over hours of testimony, Edelblut and other state officials declined to speculate on whether the teaching of certain books would hypothetically be in violation of the new law. In most cases, they said more context is needed.

For instance, Edelblut declined to say whether a teacher reading a passage from “How to Be an Anti-Racist” by Ibram X. Kendi that states that “the only remedy to racist discrimination is antiracist discrimination,” would constitute a breach of the law. 

“Even if a teacher were to focus on the book, the question would be you need the broader context,” Edelblut testified. “How is it that the teacher is focusing on that particular passage?”

The questions of interpretation go to the heart of the plaintiffs’ lawsuit, which seeks to argue that the law is too vague to be reasonably followed by teachers and that it will cause educators to self-censor certain materials to be safe.

But Edelblut argued that the use of the material itself should not determine whether a teacher is in violation. The most relevant factors, he said, relate to how the teacher is presenting that material.

“So the teacher themselves would be in the best position to know if they are teaching, instructing, inculcating or compelling to express a belief in or support for any one or more of the following (concepts),” he testified. “The teachers themselves have clarity of the action that they are doing at that time.”

State officials pushed to clarify the law after concerns from teachers over how to interpret it.

When the “divisive concepts” law was passed as part of the 2021 state budget bill, educators raised alarms about how to interpret it, and how to know whether certain instruction violated it.

State officials, too, were somewhat flustered.

“There was a perception of murkiness,” said Farrell in his deposition. “What would we do? How would we do it? I’m not talking about anybody or – anybody in particular. I’m just looking at what was the role of this agency going to be. And there was a lot of rumor, innuendo, murkiness, and I wanted – I’m a guy that likes clear.”

The state Department of Justice drafted a “question and answer” document to address those concerns, which it released in July 2021 on behalf of the Attorney General’s Office, the Commission for Human Rights, and the Department of Education.

That Q&A is currently the only interpretive document available around the law; since the lawsuit was filed against the law in December 2021, the Department of Education has declined to comment on its interpretation, directing educators to the Q&A document, Edelblut said.

In her own testimony, Malachi said the Department of Justice has not issued further guidance to determine how the Commission for Human Rights should interpret the law. That process follows the seven commissioners’ interpretation of the law according to the commission’s own standards, she said.

Click below to read the depositions in full. Some parts have been redacted at the agreement of plaintiffs and defendants to preserve the confidentiality of Commission for Human Rights cases:

Education Commissioner Frank Edelblut

Department of Education attorney Diana Fenton

Department of Education investigator Richard Farrell

Commission for Human Rights Executive Director Ahni Malachi

Commission for Human Rights Assistant Director Sarah Cohen

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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]