New Hampshire's classroom censorship law is unconstitutional

A federal court ruled Tuesday that New Hampshire's classroom censorship law is unconstitutional.

The law, House Bill 2, passed in 2021 and “actively discouraged public school teachers from teaching and talking about race, sex, sexual orientation, disability, and gender identity inside and outside the classroom,” according to the New Hampshire branch of the American Civil Liberties Union, which was among the organizations representing the teachers and advocacy groups challenging the law. It is the first ruling in the country to overturn a law on classroom censorship in public schools in grades K-12.

HB 2 amended the state's education and anti-discrimination laws to prohibit anyone from teaching that any group of people is superior because of their race, sex, sexual orientation, gender identity, or certain other characteristics, or that any group is inherently racist, sexist, or oppressive, whether consciously or unconsciously.

Like other classroom censorship laws passed in states across the country, it appears to promote equal treatment for all, but is part of a movement to suppress any teaching that racism, sexism, homophobia, or other forms of bigotry exist. They are sometimes called “don't say gay” laws. An earlier bill in New Hampshire that failed to pass was based on Donald Trump's executive order banning the use of federal funds in educational programs to promote so-called divisive concepts related to race and gender. Joe Biden repealed that executive order when he became president, but the main components of the earlier New Hampshire bill were incorporated into HB 2.

Teachers and education activists argued that the changes made by HB 2 were “unconstitutionally vague,” and U.S. District Judge Paul J. Barbadoro agreed. “The changes [contained in HB 2] 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,” he wrote. “Thus, the amendments violate the 14th Amendment to the U.S. Constitution.”

For example, one teacher avoided certain topics both in class and in his role as adviser to his high school's Model UN project “for fear that he might violate the Constitutional Amendments by making comments on the 'controversial topics' that often come up in Model UN competitions.” Another teacher said he shied away from discussions about the legacy of slavery when teaching Toni Morrison's novel “The Slavery.” beloved.

“These examples merely illustrate the extensive difficulties teachers face when attempting to conform their conduct to the vague restrictions of the amendments,” Barbadoro wrote.

Those who sued against the law applauded Barbadoro's decision. “Today's court victory means educators across New Hampshire can foster 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 an ACLU press release. “It is critical that students see themselves in the books they read and in classroom discussions so they feel cared for and valued. We understand that lawmakers are still pushing dangerous bills that tell students of color, students from the LGBTQ+ community, and students with historically marginalized identities that they do not belong in our schools and in our history. This decision puts those legislative efforts on hold by providing relief to teachers who can now confidently do their jobs and teach in ways that recognize their students' lived experiences. We are grateful to the Court for striking down this unconstitutional classroom censorship law, in a decision that has moved the pendulum toward justice for children across the state.”

“The Court's ruling today is a victory for academic freedom and inclusive education for all New Hampshire students,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire. “This unconstitutional classroom censorship law had no place in New Hampshire, and we are grateful to the Court for putting an end to the culture of fear and anxiety that this law perpetuated in Granite State schools.”

“Today’s decision validates the important work New Hampshire public school teachers do to ensure students develop the knowledge and critical thinking skills they need to succeed and contribute to their communities,” added Chris Erchull, an attorney with GLBTQ Legal Advocates and Defenders. “We are grateful that the court recognized that setting vague terms for what educators can say about race, sex, gender identity, sexual orientation and disability harms students with historically marginalized identities, including LGBTQ students. Now, teachers can plan lessons and lead student discussions without fear of losing their license if someone in the classroom brings up a vaguely defined prohibited topic. We are better as a state and a community when we can have difficult conversations and learn from them, and that is exactly what this decision enables.”

The case involved two lawsuits, one brought by Mejia, Philibotte and the New Hampshire branch of the National Education Association, the other by the American Federation of Teachers. The New Hampshire Department of Education was named as the defendant.

The plaintiffs were represented by attorneys from the ACLU of New Hampshire and the national ACLU, GLBTQ Legal Advocates and Defenders, the NEA, the Disability Rights Center, and private law firms.

The state could appeal the decision, but it is unknown whether it will do so.

Anna Harden

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