New Hampshire Lawmakers to Appeal Overturning of Classroom ‘Divisive Concepts’ Law

Demonstrators hold up signs during a rally against "critical race theory" (CRT) being taught in schools at the Loudoun County Government center in Leesburg, Va., on June 12, 2021. (Andrew Caballero-Reynolds / AFP via Getty Images)

New Hampshire legislators behind a ban on the instruction of “divisive concepts” on race and gender in K-12 classrooms say they plan to challenge the recent federal court ruling that overturned their 2021 state law.

New Hampshire U.S. District Court Judge Paul J. Barbadoro ruled on May 28 that the Granite State’s legislation that limits instruction about race and gender in classrooms is “unconstitutionally vague” and invites arbitrary enforcement against teachers accused of violating the law.

“Without adequate notice of what the amendments prohibit, teachers are incentivized to steer well clear of anything that can be construed as violating the amendments, even if it means utilizing less effective teaching methods,” Mr. Barbadoro wrote in his ruling.

“As a result, the work teachers do best is inhibited, and students are forced to bear the costs of the amendment’s ambiguity.”

In 2021, the Republican-led legislature approved amendments to the state’s education and anti-discrimination laws to bar students from being “taught, instructed, inculcated, or compelled to express belief in, or support for,” several concepts. These include that a person is inherently racist or sexist and that a person is inherently superior or inferior to another group based on their race, gender, religion, or other characteristics.

The law was modeled on a 2020 executive order issued by President Donald Trump to ban federal funding for workplace training on “divisive concepts” of race and sex. The order was targeted at the promotion of concepts such as critical race theory, a Marxist-inspired analytical framework that views the United States as systemically racist. The order was subsequently revoked by President Joe Biden.

The bill’s primary sponsor, New Hampshire Rep. Keith Ammon, a Republican, said he’s hoping for an appeal.

“We’re not giving up,” he told the Epoch Times on June 18. “I hope they [state attorney general’s office] back up the state legislature against the federal court.”

Co-sponsor, state Rep. Glen Cordelli, also expressed his disappointment with the court’s decision.

“This does not prevent students from being taught the history of slavery,” Mr. Cordelli told The Epoch Times on June 18, adding that he thinks an appeal or additional legislation is forthcoming.

“It’s very much in keeping with our nation’s views that people should be treated and considered as individuals. I think clearer heads will prevail,” the Republican lawmaker said.

The American Federation of Teachers-New Hampshire and the New Hampshire chapter of the National Education Association (NEA) filed the lawsuit against New Hampshire Department of Education Commissioner Frank Edelblut in December 2021, alleging that the law violates educators’ right to free speech.

Court papers list several examples where New Hampshire educators questioned or complained about the law.

A social studies teacher at Windham High School who showed her class two music videos about the Harlem Renaissance was investigated by the state Department of Education after a parent submitted a complaint.

Court papers did not detail the nature of the complaint or identify what part of the lesson was considered divisive. But in a June 7 article on the NEA website, the social studies teacher, Alison O’Brien, said the video in question was Beyonce’s “Formation,” which shows a child dancing in front of SWAT officers near a painted message that says, “Please stop shooting us.”

It’s Not About ‘Agree or Disagree’

“I always say to the kids [that] we’re not talking about whether we agree or disagree with these artists; we’re talking about ‘why art’ and what they’re trying to accomplish. And do we see the continuity of history from the Harlem Renaissance?” Ms. O’Brien said in the NEA article.

Court papers said teachers at Keene Middle School ordered 250 copies of “Stamped: Racism, Antiracism, and You” but declined to assign the reading to eighth graders after they were informed that Mr. Edelblut was critical of the author.

A social studies teacher at Hollis/Brookline High School modified her teaching methods “out of fear that she would be accused of violating the amendments” before the frustration prompted her to leave her career of 19 years, according to the filings. Court papers did not disclose the subject matter or examples of what concepts the teacher avoided.

An English teacher at Campbell High School discontinued his practice of discussing with students how the novel “Beloved” relates to current events like the Black Lives Matter movement because that teacher was concerned he might be misunderstood as “implying that there is a correct answer, or that students are required to agree,” court papers said.

The Department of Education Commissioner referred all inquiries to the New Hampshire Attorney General’s Office.

Michael Garrity, communications director for the attorney general’s office and the state Department of Justice, told The Epoch Times, “The state is currently reviewing the court’s order and will consider next steps, including whether to appeal.”

Chris Ager, chairman of the New Hampshire Republican Party, said state lawmakers who supported HB544 would respond to the federal court action.

“We’re going to fight this whether it’s through the legislature or in the courts,” he said.

“It’s not good for the country when people stop losing confidence in the court system.”