A district court judge on Tuesday struck down New Hampshire’s controversial “divisive concepts” law, ruling that it is “unconstitutionally vague” in violation of the Constitution’s 14th amendment.
The summary judgment ruling by Judge Paul J. Barbadoro was celebrated by the state’s two teachers’ unions, House Democrats, and educational advocates, who have argued that the law infringes upon teachers’ autonomy and has a chilling effect on the classroom.
“All New Hampshire teachers and students won big today,” said Deb Howes, the president of AFT-NH. “The vague, unconstitutional divisive concepts law was a dreadful effort to limit truthful discussion about history, gender, race and identity.”
The law, passed in 2021, banned teaching four concepts: first, any instruction that suggests the superiority of one group over the other on the basis of race, sex, religion, or several other identity characteristics; second, any instruction that implied that any one group is “inherently racist [or] sexist”; third, any instruction that an individual should be discriminated against or treated worse on the basis of their identity; and fourth, any instruction that students “should not attempt to treat others without regard” for various identity characteristics.
The curricular bans “are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement,” Judge Barbadoro wrote in his ruling.
The “divisive concepts” law was part of a nationwide effort by Republicans to push back against what they have described as the insertion of critical race theory into curricula.
“[F]or those who promote Critical Race Theory or similar concepts, their thinking is not built on a foundation of common sense, but on ideology diametrically opposed to the truths found in our Declaration of Independence, that we are all created equal,” Frank Edelblut, the commissioner of the Department of Education and one of the defendants in the lawsuit, wrote in an Op-Ed in 2021.
Department of Education spokesperson Kim Houghton directed a request for comment on the ruling to the state’s Department of Justice.
“The State is currently reviewing the court’s order and will consider next steps including whether to appeal,” DOJ spokesperson Michael Garrity wrote in a statement.
The case was brought in 2021 by the New Hampshire chapter of the National Education Association, and school administrators Andres Mejia and Christina Kim Philibotte. Mejia is the director of diversity, equity, and inclusion, and Kim Philibotte is the chief equity officer in the Manchester school district.
The plaintiffs contended in their complaint that educators were “pulling books from their curriculum” and avoiding instructing on core concepts in history.
“Can one discuss the reasons why in our country’s entire history only a single African American has ever been elected the President of the United States and no woman ever has?” they asked in their complaint.
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These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.
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