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New Hampshire officials consider next steps after federal court rules new classroom restrictions unconstitutional

The U.S. District Court of New Hampshire has become the first in the country to strike down a state law restricting discussions of racism, sexism and other forms of oppression in the classroom, but it may not be the final word on the matter as the state considers a possible appeal.

In an order this week, federal judge Paul Barbadoro sided with the teachers' unions, writing that the laws amount to a “viewpoint-based restriction on free speech” and “force teachers to guess which diversity efforts can be praised and which must be rejected, putting their careers at risk.” Barbadoro did not specifically ask the state to stop enforcing the law, but wrote that he had “no reason to believe that the defendants will not respect this court's ruling.”

New Hampshire is one of at least 25 states that have passed laws in recent years restricting certain classes or books for grades 1 through 12. And it is the first state to declare such a law unconstitutional.

“This is an important victory for educators and students in New Hampshire and sends a clear message to the entire country that bans on inclusive education are unconstitutional and will not be tolerated,” Emerson Sykes, a senior staff attorney for the American Civil Liberties Union, said in a news release. (The ACLU's New Hampshire office represented the plaintiffs in the case.)

The New Hampshire Department of Education declined to comment on the ruling and referred NHPR to the Attorney General's Office. A spokesperson for the Attorney General's Office said state officials “are currently reviewing the court's order and will consider next steps, including whether to appeal.” If the ruling is appealed, it will go to the U.S. Circuit Court of Appeals for the First Circuit in Boston.

Here you will find further details on the significance of the judgment and our knowledge of the practical implementation of the law.

Which law was just declared unconstitutional?

The law, titled “Right to Freedom from Discrimination in Public Workplaces and Education,” was passed in 2021. Proponents of the law said it was necessary to curb schools’ increased focus on training, curriculum and conversations about diversity, race, gender and racism.

The law prohibited educators from teaching that someone is inherently racist, sexist, or oppressive, even if they did so unconsciously. It also prohibited them from teaching that people “cannot and should not seek to treat others without regard” to any protected legal category, such as sexual orientation, race, or mental or physical disability. Although it was vague about which classes the law prohibited, the risk was high: A teacher who violated it could lose their license.

The law is consistent with policies of Republicans across the country, including former President Donald Trump, who used the language in an executive order restricting diversity, equity and inclusion initiatives.

Since the law came into force, has any teacher been charged with violating this law?

No. The New Hampshire Commission for Human Rights is responsible for investigating alleged violations of the law and has filed one complaint against a teacher. However, this has not resulted in a formal violation to date.

The New Hampshire Department of Education also faces concerns from staff and parents that teachers may be violating the law. In some cases, the agency has conducted less formal investigations of those teachers. Lawyers for the ACLU-NH argued that while those investigations are less formal, they still have a chilling effect on teachers.

What was the lawsuit about?

Shortly after the law passed, a coalition of teachers unions, LGBTQ and disability rights activists, and the ACLU-NH sued the state, claiming the law was so unclear that educators would not know how to comply with it. They also argued that it invited arbitrary enforcement and violated the protections of teachers under the 14th Amendment to the U.S. Constitution.

In court, lawyers for the coalition argued that the law had a chilling effect on teaching, pointing out that some teachers avoided certain books and discussions because they feared they might violate the law. Among them was Patrick Keefe, an English teacher at Campbell High School in Litchfield, who said he was afraid of getting in trouble for connecting Toni Morrison's “Manchild” to contemporary issues in class. Also affected was Allison O'Brien, whose class on the Harlem Renaissance unexpectedly sparked an investigation by the Department of Education's misconduct investigator.

Prosecutors argued that the text of the law itself, as well as written guidelines from the New Hampshire Attorney General, provided sufficient information to comply with the law.

The judge was not convinced by the state's arguments, writing that while the wording “may seem straightforward at first glance, its ambiguity becomes apparent when put into practice.”

He wrote that the resulting ambiguity puts teachers in the untenable position of having to “stake their careers on a guess or stay away altogether from discussion of topics involving the forbidden concepts.”

“This lack of clarity makes the law unconstitutionally vague,” he added.

One of the defendants named in the lawsuit is New Hampshire Education Commissioner Frank Edelblut. How did the judge interpret his role?

Edelblut's support and interpretation of the law received significant attention in the lawsuit. In his ruling, the judge pointed to op-eds Edelblut had written in support of the law to support his finding that it was being applied arbitrarily.

“The record shows that those charged with enforcing the law relied in their efforts on Commissioner Edelblut's personal views on appropriate instructions as expressed in his opinion articles,” Barbadoro wrote.

A recent investigation by NHPR and APM Reports found a similar pattern at the Department of Education, where the education commissioner used his oversight powers to amplify complaints against teachers related to issues such as race, racism and LGBTQ identity.

This story is a production of the New England News Collaborative. It was originally published by New Hampshire Public Radio.

Anna Harden

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