State’s attorneys seek to dismiss ‘divisive concepts’ suit before federal judge

New Hampshire’s so-called “divisive concepts” law, on the books since the governor signed the budget package last year, will still be in place for the start of the school year, despite a lawsuit asking a federal judge to rule it contrary to the state’s constitution.

The suit, a single piece of litigation after two suits against the state were consolidated in February, is currently awaiting the decision of a judge as to whether it may go forward. The attorneys for the state have filed a motion to dismiss the case, and attorneys for the two teachers’ unions who are acting as plaintiffs have filed their own responses. Judge Paul Barbadoro has scheduled a hearing for Sept. 14.

Suits were brought against the state late last year by the state chapter of the American Federation of Teachers, as well as individual parents and educators, who complained that the law, known as the “Right to Freedom from Discrimination in Public Workplaces and Education,” prohibits the teaching of topics that deal with prejudice, racism and discrimination. That suit was combined with a second complaint brought by the National Educators Association – New Hampshire on behalf of two educators who are responsible for promoting diversity, equity and inclusion in their respective districts.

The combined suit names as defendants the state’s commissioner of education, Frank Edelblut, as well as New Hampshire Attorney General John Formella; Ahni Malachi, executive director of the Commission for Human Rights; Christian Kim, who chairs the Commission for Human Rights; and Ken Merrifield, commissioner of the Department of Labor.

Motion to dismiss

In a motion filed on March 25, Formella and Assistant Attorney General Samuel Garland asked Judge Barbadoro to dismiss the case, arguing that the plaintiffs failed to prove their complaints that the law’s language was too vague to understand, and that teachers’ First Amendment rights had been infringed. In their motion, the attorneys for the state reference clarifying publications made by both the Commission for Human Rights, which fields complaints from the public about possible violations of the law, and by the Office of the Attorney General, which would be responsible for prosecuting such violations.

The state’s attorneys write in their motion that “ … both sets of plaintiffs have failed to state viable vagueness claims because the statutory text and the guidance produced by the enforcing agencies confirm that the new antidiscrimination provisions set forth a discernible standard of conduct and do not encourage arbitrary and discriminatory enforcement. For all of these reasons, and those stated above, the plaintiffs’ respective complaints should be dismissed in their entirety.”

Countering the state’s motion, Peter Perroni, attorney for the plaintiffs, argued in their own motion that the documents published by the state, intended to provide clarity, only proved the vagueness of the statute as written. Further, the plaintiffs said that the agencies which provided that clarity didn’t have definitive authority, as it would ultimately be the Supreme Court to adjudicate whether the action of a teacher violated the law.

With such uncertainty, Perroni argued, teachers are left to wonder what they can safely teach and what could put their careers in jeopardy. “The threat of lengthy legal proceedings and public scrutiny influences educator choices and causes them to shy away from any topic or material which could be misinterpreted as a violation of the Statute,” he wrote in his objection.

‘Divisive concepts’ statute

Known as the “divisive concepts” law, the effort to put in place restrictions on what public educators could teach originated as a stand-alone bill that failed to make it into law. However, a reworded version of the legislation was added to the budget package and signed by Gov. Chris Sununu on June 25, 2021.

The law prevents the teaching that any group of person is inherently superior or inferior to any other group. Also prohibited are teachings that any one group is inherently racist, sexist or oppressive.

The law empowers the public to enforce it by inviting them to file a complaint of discrimination with the NH Commission for Human Rights or the AG’s office. Those complaints will be investigated, and if an investigation concludes that a violation was committed, the offending teacher could lose their teaching license.

Plaintiffs in the suit against the state claim that the law is not sufficiently clear to teachers, or to the public, and that has resulted in educators steering wide of topics or literature that they would otherwise have asked their students to discuss, for fear of inviting a state investigation.

When the suits were filed, Sununu dismissed these complaints in a statement.

“Nothing in this language prevents schools from teaching any aspect of American history, such as teaching about racism, sexism, or slavery — it simply ensures that children will not be discriminated against on the basis of race, gender, sexual identity, or religion,” Sununu said.

This article is being shared by partners in the Granite State News Collaborative as part of our race and equity initiative. For more information, visit collaborativenh.org. In August, Collaborative reporters will take a deep dive into the impacts so far of the “divisive concepts” legislation on Granite Staters.