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NH officials mull next steps after federal court says new teaching restrictions are unconstitutional

Sarah Gibson for NHPR

The U.S. District Court of New Hampshire is the first in the country to strike down a state law that restricts classroom discussions on racism, sexism and other forms of oppression. But this might not be the last word on the matter, as the state mulls a potential appeal.

In an order this week, federal judge Paul Barbadoro sided with teachers’ unions, writing that the laws amounted to “viewpoint-based restrictions on speech” and “force teachers to guess as to which diversity efforts can be touted and which must be repudiated, gambling with their careers in the process.” Barbadoro didn’t specifically order the state to stop enforcing the law, writing that he has “no reason to believe that the defendants will fail to respect this court’s ruling.”

New Hampshire is one of at least 25 states that passed laws in recent years restricting certain K-12 lessons or books. And it is the first where such a law has been declared unconstitutional.

“This is an important win for educators and students in New Hampshire and sends a clear message across the country that bans on inclusive education are unconstitutional and will not stand,” Emerson Sykes, a senior staff attorney at the American Civil Liberties Union, said in a press release. (The ACLU’s affiliate in New Hampshire represented plaintiffs in the case.)

The New Hampshire Department of Education declined to comment on the ruling, pointing 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 would head to the U.S. Circuit of Appeals for the First Circuit, in Boston.

Here’s more details on what the ruling means, and what we know about how the law was working in practice.

What law was just declared unconstitutional?

The law, called the “Right to Freedom from Discrimination in Public Workplaces and Education,” was passed in 2021. Supporters for the law said it was needed to curb schools’ increased focus on training, curriculum, and conversations regarding diversity, race, gender, and racism.

The law prohibited educators from teaching that anyone is inherently racist, sexist, or oppressive, even if unconsciously. It also prohibited them from teaching that people “cannot and should not attempt to treat others without regard” to any protected legal category, such as sexual orientation, race, or mental or physical disability. Though vague in what lessons it prohibited, the stakes of the law were high: a teacher found to have violated it could lose their license.

The law mirrored policies introduced by Republicans across the country, including former President Donald Trump, who used this language in an executive order restricting diversity, equity, and inclusion initiatives.

Has any teacher been charged with violating the law since it took effect?

No. The New Hampshire Commission for Human Rights is responsible for investigating alleged violations of the law, and so far, it has docketed one complaint against a teacher. As of press time, this has not led to any formal violation.

The New Hampshire Department of Education also fields concerns from staff and parents that teachers might be violating the law, and in some cases the agency has conducted less official investigations into those teachers. Attorneys for the ACLU-NH argued that these inquiries, while less formal, also contributed to a chilling effect on teachers.

What was the lawsuit about?

Soon after the law passed, a coalition that included teachers’ unions, LGBTQ and disability rights advocates, and the ACLU-NH sued the state. They alleged that the law was so unclear that educators couldn’t understand how to comply with it. They also argued that it invited arbitrary enforcement, violating teachers’ 14th amendment protections.

In court, lawyers for that coalition argued that the law was having a chilling effect on classrooms, noting that some teachers were forgoing certain books and discussions out of fear these might run afoul of the law. This included Patrick Keefe, a high school English teacher at Campbell High School in Litchfield, who testified that he was worried he would get in trouble for lessons connecting Toni Morrison’s Beloved to contemporary issues, and Alison O’Brien, whose lessons on the Harlem Renaissance unexpectedly prompted an inquiry from the education department’s misconduct investigator.

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State attorneys argued that the language of the law itself, in addition to written guidance issued by the New Hampshire Attorney General, provided sufficient information on how to comply.

The judge was unconvinced by the state’s arguments, writing that while the language “may appear straightforward at first glance, their ambiguity comes to light when put into practice.”

He wrote that the resulting ambiguity puts teachers “in the untenable position of having to wager their careers on a guess or else refrain from discussing matters that implicate the banned concepts altogether.”

“This lack of clarity renders the statute unconstitutionally vague,” he added.

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

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

“The record demonstrates that those charged with enforcing the law have relied on Commissioner Edelblut’s personal opinions on what is appropriate instruction, as expressed in his op-ed articles, to guide their efforts,” Barbadoro wrote.

A recent investigation by NHPR and APM reports found a similar pattern at the Department of Education, in which the education commissioner used his oversight powers to amplify complaints against teachers related to topics of race, racism, and LGBTQ identity.

Sarah Gibson joined NHPR's newsroom in 2018. She reports on education and demographics.