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Federal judge rejects NH's anti-discrimination law as too vague

A federal judge ruled Tuesday that New Hampshire's law banning the teaching of discriminatory content in schools is too vague and therefore violates the constitutional rights of educators.

“The amendments are viewpoint-based restrictions on free speech that neither adequately warn educators about what they prohibit nor provide sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement,” wrote U.S. District Court Judge Paul Barbadoro, citing his ruling protecting the 14th Amendment from vague laws, saying that the New Hampshire legislature had passed a law that was nearly “incomprehensible.”

Supporters of the law disagree.

According to the law struck down by Judge Barbadoro:

  • You cannot “teach, instruct, instruct or train” people that one group is inherently superior or inferior to another.
  • You can't teach anyone that people are inherently racist, sexist, etc., depending on what group they belong to.
  • You cannot teach people that they should be discriminated against because of their group membership.
  • You cannot teach people not to even try to treat people of other groups equally (the “race should not matter/be colorblind” approach).

As a result, school districts like Manchester, Litchfield and Laconia were no longer able to use curriculum based on critical race theory in their classes. Repealing the law would allow the reintroduction of this content.

Barbadoro said trying to prevent teachers from telling students they are racist, sexist, etc. crosses the line into opinion discrimination.

“The most obvious problem of vagueness is the fourth concept, which prohibits the doctrine that persons in one group 'cannot and should not seek to treat others without regard to' their membership in another group. As other courts have held, this formulation 'border[s]on obscurity' because it uses the dreaded triple negative,” Barbadoro wrote.

The judge argued that the law represented an untenable mix of subjective instructions and harsh punishments.

“Possible disciplinary action includes reprimand, suspension, and revocation of teaching license,” Barbadoro wrote. “In other words, a teacher who has taught or promoted a banned concept may not only lose his job, but also his license to teach anywhere in the state.”

The office of Frank Edelblut, commissioner of the New Hampshire Department of Education, declined to comment.

Nixon Peabody attorney Morgan Nighan, who represented the plaintiffs, said a law so unclear that it cannot be followed is a clear violation of the 14th Amendment.

“No normal person can understand what is prohibited,” Nighan said. “Laws like this are repealed regularly across the country.”

Teachers were not allowed to talk about legal cases involving affirmative action, Israel's war against Hamas, or other potentially explosive current issues for fear of breaking the law, Nighan claimed. This meant that teachers avoided large parts of history or current events for fear of losing their licenses without knowing why.

“For example, teachers may try to stimulate discussion by asking students pointed questions, or they may stimulate debate by presenting students with ideas that contradict their own. When such techniques are used to examine a forbidden concept, it is impossible to know whether a forbidden concept has been improperly taught,” Barbadoro wrote.

Supporters of the law reject this claim on the grounds that the line between teaching that racism exists and actually advocating racism is easy to see.

According to Barbadoro's ruling, Edeblut's attempts to clarify the law failed. Edeblut attempted to set out his views in a June 2021 newspaper op-ed, but that only added to the confusion and fear, Barbadoro said.

“The threat of arbitrary enforcement based on Edelblut’s personal views influenced teachers even without a formal complaint,” Barbadoro wrote.

One incident mentioned in Barbadoro’s ruling involved Keene Middle School, which had a plan to train Ibrahim X. Kendi’s “Stamped: Racism, anti-racism and you” after the district purchased 250 copies of the books. According to the ruling, Edelblut's column was the reason Keene abandoned Kendi's book.

According to Kendi, “there is no such thing as 'non-racist' or 'race-neutral' policy,” and anyone who does not commit to what he calls “anti-racism” — that is, openly treating white people differently than people of color — is committing racism. Some parents objected to the idea that their children were being taught that their skin color made them inherently privileged and racist.

New Hampshire passed the anti-discrimination law as a series of amendments to the 2021 biennial budget. Rather than banning certain “divisive concepts,” the amendments aimed to prohibit teachers from “teaching, conveying, instructing, or teaching” students that one group is inherently superior or inferior to another; that people are inherently racist, sexist, etc., depending on which group they belong to; that people should be discriminated against based on their group; that people should be prevented from treating others equally.

Although the law allows teachers to discuss topics such as racism and sexism in class, there is no clear legal distinction between such discussions and actual teaching, opponents complained.

Megan Tuttle, president of the New Hampshire teachers union NEA, said the law “stifles the efforts of New Hampshire teachers to provide a true and honest education. Students, families and educators should rejoice at this court decision that restores the teaching of truth and the right to an education to all Granite State University students.”

Michael Garrity, spokesman for the New Hampshire Department of Justice, said the state is reviewing Barbadoro's ruling.

“The state is currently reviewing the court's order and will consider next steps, including whether to appeal.”

Anna Harden

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