New Hampshire's restrictions on teaching race and gender are unconstitutional, judge says

A federal judge has struck down a nearly three-year-old New Hampshire law that allows teachers to talk about race, gender, sexual orientation, disability and other issues.

Republicans called the 2021 law an anti-discrimination measure after the Trump administration tried to ban the discussion of “divisive concepts.” It prohibits teaching children in public schools that they are inferior, racist, sexist or oppressive because of their race, gender or other characteristics.

Teachers who violate the law face disciplinary action, including possible revocation of their license, and could also be sued.

Educators and administrators who sued the state said they weren't sure what they were legally allowed to teach. They said the law violated their free speech and they feared for their jobs.

U.S. District Judge Paul Barbadoro ruled Tuesday that the law's language on banned concepts only indirectly addresses the challenged language and fails to provide teachers with “much-needed clarity” on how to apply the law, both in the classroom and in extracurricular activities where students might initiate conversations.

“This lack of clarity creates confusion and leaves significant gaps” that only law enforcement can fill. This leads to arbitrary and discriminatory enforcement of the laws based on the viewpoint of a particular law enforcement agency.

Several groups filed the lawsuit, including the American Civil Liberties Union of New Hampshire, the National Education Association-New Hampshire, the American Federation of Teachers-New Hampshire union, school administrators advocating for diversity, equity and inclusion, and teachers and parents.

They sued New Hampshire Education Commissioner Frank Edelblut, Human Rights Commission Chairman Christian Kim, and New Hampshire Attorney General John Formella.

The judge's decision “means that educators across New Hampshire can create equitable and inclusive school environments where all students are seen and heard,” Christina Kim Philibotte and Andres Mejia, two New Hampshire school administrators who are plaintiffs in the case, said in a statement. “It is critical that students see themselves in the books they read and in classroom discussions so that they feel cared for and valued.”

The Attorney General's Office is reviewing the judge's decision and considering filing an appeal, a spokesman said.

The New Hampshire law is one of many in Republican-led states that have sought to restrict classroom discussions based on concerns about critical race theory, which centers on the assumption that racism is systemic in the nation's institutions.

“Judge Barbadoro just put the abolition of Critical Race Theory back on the ballot in November,” wrote Republican state Rep. Keith Ammon of New Boston on X.

Chuck Morse, a Republican candidate for governor, was president of the Senate when the bill was drafted and passed. He called the ruling “a critical step toward creating an educational environment focused on unity and equality, and I will not be deterred by this setback.”

Anna Harden

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