ACLU joins NEA to file second lawsuit against “divisive concepts” law

A group of advocacy groups has teamed up to file a lawsuit against New Hampshire officials over a new law regulating what can be taught in classrooms – one week after a separate teacher’s union brought its own legal challenge.

In a news release Monday, the National Education Association of New Hampshire and the American Civil Liberties Union announced they had filed the lawsuit in U.S. District Court of New Hampshire in Concord against Education Commissioner Frank Edelblut, Attorney General John Formella, Executive Director of the New Hampshire Commission for Human Rights Ahni Malachi, Chairman of the New Hampshire Commission for Human Rights Christian Kim, and Commissioner of the New Hampshire Department of Labor Ken Merrifield. 

“Parents and educators agree that students should learn complete facts about historical events like slavery and civil rights,” said NEA-NH President Megan Tuttle in a statement. “They agree that politicians shouldn’t be censoring classroom discussions between students and their teachers, and that educators shouldn’t have their licenses and livelihoods put at risk by a vague law.”

The GLBTQ Legal Advocates & Defenders (GLAD) and the Disability Rights Center – NH are also supporting the lawsuit.

Often referred to as the “divisive concepts” law – a reference to an earlier version that did not pass – the new law restricts educators from teaching that a person in one protected class is inherently superior to another, 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. 

It was passed into law in 2021 through the budget trailer bill, House Bill 2. 

Supporters of the law have said it is necessary to prevent students from being singled out because of their race, gender, or other identifying characteristics and made to feel they are either inherently oppressive or inherently victimized.

But critics have denied that that activity exists in classrooms, and say the law will stifle nuanced discussions of historical events and lead to a chilling effect against teachers.

The lawsuit’s plaintiffs include two educators: Andres Mejia, the director of diversity, equity inclusion, and justice for the Exeter Region Cooperative School District and Kim Philibotte, the chief equity officer for the Manchester School District. Both say they have struggled to carry out their job responsibilities due to the confusing and restrictive nature of the new law. 

The NEA-NH’s lawsuit is the second to take on the law in New Hampshire; the first was filed by the American Federation of Teachers, a separate New Hampshire teachers’ union, on Dec. 13, also in the U.S. District Court of New Hampshire.

The two filings appear broadly similar: Both lawsuits are centered around the argument that the new teaching law is too vaguely written to be followed, and as a result, teachers feel suppressed. That vagueness violates the Fourteenth Amendment of the U.S. Constitution, both lawsuits contend. 

Both lawsuits cite guidance issued this year by the state’s Attorney General’s Office and the New Hampshire Commission for Human Rights that they say did not fully answer concerns over what could and could not be taught under the new law. 

And both refer to a tweet by conservative activist group Moms for Liberty New Hampshire, which pledged a $500 reward “for the person that first successfully catches a public school teacher breaking this law.” That pledge will incentivize parents to bring actions against teachers to either the state’s Commission for Human Rights or in Superior Court, the lawsuits argue, and will force teachers to be even more cautious.

“Educators fear that students, as well as parents, will respond to this Moms for Liberty “bounty” given its monetary reward,” the lawsuit states. “Teachers are already subject to students creating social media pages targeting them or clandestinely videoing their lessons and classroom interactions. Educators feel like they cannot freely engage with their students and, instead, have retreated to guarded lessons that do not serve these students as well as an honest education does.”

A spokesperson for the Attorney General’s Office was unavailable Monday. A spokeswoman for the Department of Education declined to comment on the AFT lawsuit last week, citing the department’s policy of not commenting on pending litigation.