Oral arguments in New Hampshire’s ‘divisive concepts’ lawsuit set for Wednesday

A lawsuit against the state’s “divisive concepts law” will come before oral argument in federal court Wednesday, allowing lawyers for teachers unions and the American Civil Liberties Union of New Hampshire to square off against the Department of Justice.

The court hearing, set for 1 p.m. at the U.S. District Court in Concord, will allow the plaintiffs to lay out why they say the new law creates a “chilling effect” for teachers that violates the Constitution.

The law, known by some as the “divisive concepts law,” bars New Hampshire educators from teaching that a person in one protected class is inherently superior to another, inherently racist, or inherently oppressive, even unconsciously, and it prohibits teaching that an individual should be treated differently for one of those characteristics.

It also prevents the teaching that people of one class “should not attempt to treat others equally and/or without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

Supporters have said that the law stops teachers from appearing to single out students of one race or gender – for instance white people or men – when talking about history, and that it applies to all protected classes equally. 

But teachers unions and other opponents argue the prohibitions are broad and vague, and say the potential professional consequences will dissuade teachers from starting nuanced discussions about historical oppression.Those consequences can include lawsuits brought by parents against teachers and the potential loss of educational credentials.

Teachers unions filed two separate lawsuits in December, one led by the American Federation of Teachers of New Hampshire and the other led by the National Education Association of New Hampshire and the ACLU. Those lawsuits have since been combined into one case by the U.S. District Court; Wednesday’s hearing will include representatives from all parties. The plaintiffs include the state’s Disability Rights Center and GLBTQ Legal Advocates & Defenders (GLAD). 

They also include Andres Mejia, the director of diversity, equity inclusion, and justice for the Exeter Region Cooperative School District; Kim Philibotte, the chief equity officer for the Manchester School District; John Dube, a high school U.S. history and AP U.S. history teacher at Timberlane Regional High School; Ryan Richman, a high school world history teacher also at Timberland; and Jocelyn Merrill, a ninth-grade English teacher at Nashua High School North.

In their filings, lawyers for the plaintiffs have argued that the 14th Amendment prohibits legislation that is “unconstitutionally vague” and that the law is too confusing to follow confidently, which they say will lead to self-censorship by teachers.

The state, in its filing to dismiss the case, has sought to rebuff that vagueness argument, noting that the Attorney General’s office, the Department of Education and the Commission for Human Rights issued joint guidance to schools and teachers in 2021 on how to interpret the law and what lessons might or might not violate it. And lawyers for the state have argued that teachers are not entitled to a broad right to free speech when it comes to their “official duties” in the classroom and can be limited by policy or laws.