In a first in the nation, a New Hampshire federal judge ruled on May 28 that banning teaching critical race theory (CRT) and other “divisive concepts” in schools is unconstitutional.
The ruling, prompted by a legal challenge of the ban by the American Federation of Teachers (AFT) and the National Education Association (NEA), could have a sweeping impact across the U.S., where 44 states have enacted such bans.
In what the American Civil Liberties Union (ACLU) quickly heralded as a landmark ruling, U.S. District Court Judge Paul Barbadoro noted that New Hampshire law banning the teachings was born out of legislation based on President Donald Trump’s executive order entitled “Combating Race and Sex Stereotyping” and that it was revoked by an executive order by President Joe Biden.
“President Trump’s order,” he wrote, “ sought to end federally-funded training based on “anti-American propaganda,” and “critical race theory (CRT).”
In his 50-page ruling, Judge Barbadoro, a George H.W. Bush appointee, concluded that the ban is “fatally vague” and that its enforcement is based on the personal opinions of New Hampshire Education Commissioner Frank Edelblut.
“Indeed, 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,” the judge wrote.
He cited two op-ed articles Mr. Edelblut, a professed Christian conservative who with his wife homeschools their seven children, wrote in support of amending state law to ban teaching so-called divisive concepts including white supremacy, gender identity, and other implicit biases.
In one of the op-ed pieces, the judge noted that Mr. Edelblut argued that the amendments were “important” and a necessary “contribution to our education system.”
In a second op-ed piece, “Education’s Sacred Trust, ” Mr. Edelblut criticized “activist educators who might be knowingly dismantling the foundations of a value system [parents] are attempting to build.”
The judge also cited Mr. Edelblut’s description of his resources for the articles as “instructional material from New Hampshire schools that parents have identified as conflicting with their values” and which demonstrated “biases [that] are beginning to seep into our own institutions.”
In his conclusion, Judge Barbadoro deemed that the 2021-enacted law was “ 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.”
On a broader scale, he ruled that the restricted curriculum violated the Fourteenth Amendment’s Due Process Clause because it leaves teachers open to punishment including loss of license and civil liability based on vaguely-defined prohibitions.
“Although teachers do not face criminal penalties for teaching a banned concept, it is difficult to conceive of more serious consequences that could befall a person in a civil proceeding than those that a teacher might face if they are found to have done something that the Amendments prohibit,” he wrote.
Mr. Edelblut’s administration referred The Epoch Times to the New Hampshire Attorney General’s office for comment.
In a brief written response, a spokesman told The Epoch Times that “the State is currently reviewing the court’s order and will consider next steps including whether to appeal.”
In celebration of the court ruling, AFT President Randi Weingarten said she believes that anti-divisive concepts legislation is deliberately designed to be vague to ensnare well-intended teachers.
She said she was grateful that Judge Barbadoro put an end to what she called a “charade” and “grievous assault” on “knowledge, learning, history, and critical thinking.”
“The vagueness was a feature, not a bug, and was written to confuse and confound so educators would never know whether they would lose their license,” she said.
“That’s not supporting teaching and learning—it’s an attack on professionals who’ve dedicated their careers to helping kids thrive.”
Gilles Bissonnette, the ACLU of New Hampshire’s legal director, called the ruling “a victory for academic freedom and an inclusive education for all New Hampshire students.”
In 2021, when the teachers unions first challenged the law, Gov. Chris Sununu, a Republican, dismissed their argument that it censored teachers.
“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,” he said in a released statement then.
His office did not respond to requests by The Epoch Times for a response to the court ruling.
While similar laws have drawn backlash from the teachers’ unions, New Hampshire’s ban became especially controversial when the conservative group Moms For Liberty offered a $500 reward to anyone who could prove that a New Hampshire teacher violated the new law.
The ban, initiated by House Bill 544, added the new statute “Discrimination In Public Schools,” which listed a litany of concepts that schools cannot teach to students, including sex, gender identity, sexual orientation, race, religious beliefs, ethnicity, and marital status, that cannot be used to promote that someone is “inherently superior” and also that someone is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.”
It also added a new section to the existing state statute entitled “Law Against Discrimination“ that made it unlawful for a public educator to “teach, advocate, instruct, or train” the banned concepts to “any employee, student, service recipient, contractor, staff member, inmate, or any other individual or group.”
