No teaching credentials have been lost yet under NH’s ‘divisive-concepts’ law
Only one complaint has been filed in nearly two years of statute
In the 19 months since a state law went into effect restricting what public school teachers can say to students about discrimination, only one complaint to the NH Commission for Human Rights has met the basic legal standard for moving forward.
Ahni Malachi, executive director for the commission, confirmed this single case after a public records request from The Sentinel, but said confidentiality requirements prevent her from releasing any information about it.
The commission is a state agency that has the power to receive as well as investigate and make findings on complaints of illegal discrimination.
Malachi said she doesn’t know how many other claims against teachers fell short of the so-called “prima facie,” or at first sight, threshold for being docketed with the panel.
Once docketed, a case is then investigated to determine if it should move forward to conciliation or a public hearing.
Ultimately, violation of the law could result in people losing teaching credentials. But this has not occurred yet, the NH Department of Education said in a statement.
Opponents of the law are challenging it in federal court and are seeking its repeal through legislation.
A federal judge has ruled that the legal case can move forward into a discovery phase, when attorneys for plaintiffs and defendants exchange information about witnesses and evidence to be presented at trial.
The judge found that a plausible claim has been made that the law is unconstitutionally vague. The U.S. Constitution requires that laws are specific in what conduct they prohibit.
The 2021 statute bars public school educators from telling students that some individuals by virtue of age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin are inherently racist, sexist or oppressive, consciously or unconsciously.
It is commonly called a “divisive-concepts” or “banned-concepts” law, although those words do not appear in the text. Its official name is “Right to Freedom from Discrimination in Public Workplaces and Education.”
Backers of the statute say it is a proper anti-discrimination measure that doesn’t block teaching, but does limit preaching about discrimination.
Opponents say it chills classroom discussions and puts teachers in the impossible position of trying to teach history, social studies and other topics without running afoul of vague provisions.
In addition to the court challenge, there is also legislation, House Bill 61, which would repeal the law and says the state shall not “bar any school employee from teaching the historical or current experiences of any group that is protected from discrimination.”
HB 61 is pending in the House Education Committee, where 1,257 people have submitted online testimony in favor of the repeal bill, while 74 have filed statements in opposition.
House Majority Leader Jason Osborne, R-Auburn, and Deputy Majority Leader Jim Kofalt, R-Wilton, released a statement Jan. 12 after testimony on HB 61 before that committee.
“It’s appalling to see that Democrats in our state are attempting to repeal our anti-discrimination statute,” they said. “At today’s hearing, supporters of the HB 61 repeal called for mutual respect, fairness, and a society that is fully open to participation by everyone. We agree 100%. Unfortunately, repealing our anti-discrimination law would have precisely the opposite effect.”
Rep. Amanda Toll, D-Keene, filed an online statement backing the repeal effort.
“The divisive concepts ban is a direct threat to honest education and to the eradication of oppression,” she said. “We cannot solve the problems of today without knowing how they came to fruition. Hence, we vehemently oppose NH’s divisive concepts ban.”
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