New Hampshire AG’s Office opposes CHARLIE Act over constitutional concerns

Following years of court battles over “divisive concepts,” House Republican lawmakers have rallied around new legislation this year to bar public K-12 teachers from the “indoctrination” of Marxism and critical race theory. 

But as the “CHARLIE Act” moves to the Senate after passing the House last month, the bill has an unlikely opponent: the New Hampshire Department of Justice. 

House Bill 1792 “presents constitutional concerns and risks conflicts with other laws,” Assistant Attorney General Sean Locke, the head of the department’s civil rights unit, told senators last week. 

“The litigation risk and conflict of laws lead us to oppose this legislation as written,” Locke said in sharply worded comments to the Senate Education Committee.

Locke’s comments were the first time the department has taken a position against the bill — a rare move for the Attorney General’s Office. They come as the department is defending a similar 2021 state law restricting public school teaching from a multi-year lawsuit brought by teachers unions.

A federal judge overturned that law, known as the “divisive concepts” law, in 2024, ruling it was unconstitutionally vague. The state has appealed that decision to the 1st Circuit Court of Appeals in Boston, but parties to the lawsuit are still waiting on a decision. 

The CHARLIE Act is designed to better withstand lawsuits than the 2021 law, argues Rep. Mike Belcher, a Wakefield Republican and the bill’s architect.

“This bill is simple and targeted, and it looks to be what the prior legislation that these bodies both passed should have been from the beginning,” Belcher told the committee. 

But Locke said similar issues of vagueness could plague the new bill if passed into law. 

Named after Charlie Kirk, the right-wing figure assassinated at a public event in Utah last September, the CHARLIE Act is an acronym for “Countering Hate and Revolutionary Leftist Indoctrination in Education.”

The bill seeks to stop K-12 teachers from advocating for “identity-based” ideologies or pedagogical frameworks — teaching philosophies — that cater to certain concepts.

Those concepts include the “Marxist” and “Hegelian” framing of history as a conflict between oppressors and the oppressed; critical race theory; the analysis of oppression in society; and intersectionality, in which the challenges of multiple social categories like race and gender are contemplated at once, according to the bill.

The bill would also prevent teachers from requiring students to affirm others’ LGBTQ+ identities or advocate that being LGBTQ+ is “ethical or normative.” 

Under the bill, teacher violations could result in disciplinary action against their teaching licenses, and could allow parents or students to sue school districts for up to $10,000 per violation. 

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Republicans say the law is necessary to curb progressive ideology in public school, which Belcher argues has spread in recent decades through teaching colleges.

“I know the impression is out there that some people are anti-public school,” Belcher said. “I’m not anti-public school in the least. I want to see public school reformed and to do good and to inculcate good, positive American values and good basic education.” 

And the bill’s proponents argue the law is sufficiently defined. They note it does not prevent teachers from teaching about the concepts or history of the named theories, but merely bans their advocacy. 

But Locke pointed to the prohibition on the “affirmation” of LGBTQ+ ideologies as an example of the bill’s fatal vagueness.

“The concern here is going to be, what is affirmation?” he said. “Is it requiring a student to treat another person, an LGBTQ+ person, with dignity and respect and affirmation of identity, or does it require more?”

He added: “These are the questions that are significant, because they are going to be the position of the challenge.”

Locke also argued the LGBTQ+ provisions conflict with existing state anti-discrimination laws that protect sexual orientation and gender identity. 

That, Locke said, could put teachers in a catch-22, where they may feel reluctant to take action against bullying or harassment of gay, lesbian, or transgender students for fear of violating the law. He warned the ambiguity could extend beyond the misuse of pronouns and into the use of discriminatory slurs. 

Locke raised an additional legal issue with the bill: the lack of a requirement for teachers to have violated the act “knowingly.” The absence of that provision, known as a “scienter requirement,” was a key reason U.S. District Court Judge Paul Barbadoro found the 2021 law unconstitutional. 

And Locke noted the bill does not include any additional funding for the Department of Justice to enforce it.  

After hours of testimony, last week’s Senate Education Committee hearing for the bill was recessed until Tuesday. It will continue at 9:15 a.m.

Asked about the Department of Justice’s concerns, Belcher said the bill would survive legal challenges. He said he had learned from the flaws of the 2021 law, and had crafted the definition of indoctrination “narrowly,” and identified the teaching methods clearly.

“I would say the whole thing is fresh because it’s fundamentally built on a different basis,” he said. 

To Belcher, the goal is not to avoid a lawsuit, but to win one. 

“I have no doubt that this will be challenged,” he said. “Anything controversial is going to get challenged in the state of affairs in our country right now.”