Advocates Respond to Arguments in Federal Challenge to NH Classroom Censorship Law

“Banned Concepts” Law Creates Unconstitutional Barrier to Discussions of Race, Gender, Disability, and LGBTQ topics in Schools and Public Workplaces

Today the U.S. Federal District Court for the District of New Hampshire heard arguments in the lawsuit challenging New Hampshire’s classroom censorship law, which discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom.

The Court heard a motion for summary judgment in AFT-NH/Mejia/Philibotte/NEA-NH et al v. Edelblut et al, during which the ACLU of New Hampshire argued on behalf of two New Hampshire school administrators who specialize in diversity, equity, and inclusion, as well as the National Education Association – New Hampshire (NEA-NH). These plaintiffs are represented by lawyers from a broad coalition of organizations and law firms, including the NEA-NH and National Education Association, the ACLU, the ACLU of New Hampshire, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders (GLAD), Nixon Peabody LLP, Preti Flaherty, and Shaheen & Gordon, P.A. AFT-New Hampshire also made arguments against this classroom censorship law today, as this is a consolidated lawsuit.

The plaintiffs argued that the law is unconstitutionally vague under the Fourteenth Amendment and violates the First Amendment. Depositions and case documents revealed how the law is actively discouraging public school teachers from teaching and talking about race, gender, disability, and LGBTQ+ identities inside and outside the classroom.

“This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire. “New Hampshire’s classroom censorship law is an attack on educators who are simply doing their job, and through vagueness and fear it erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people, and people with disabilities.”

Last year, the federal court denied the state’s motion to dismiss the litigation, making it the fourth legal challenge to a “banned concepts” law in the U.S. that reached a similar finding. Laws banning similar concepts in other contexts in Florida were preliminarily enjoined on vagueness grounds in two cases, here and here, which followed another federal judge deeming impermissibly vague former President Trump’s “divisive concepts” Executive Order.

In that January 2023 ruling, the Court concluded that the law does “not give teachers fair notice of what they can and cannot teach,” adding, “[g]iven the severe consequences that teachers face if they are found to have taught or advocated a banned concept, plaintiffs have pleaded a plausible claim that the amendments are unconstitutionally vague.”

Plaintiffs Christina Kim Philibotte and Andres Mejia, who are New Hampshire school administrators, said, “As educators we know the value of nurturing an equitable and inclusive school environment where all students feel seen and heard—including in the books they read and the classroom discussions they participate in—and their humanity is recognized. This law hinders efforts to create more inclusive educational experiences, making it harder for students to comfortably speak and share their experiences on complex, relevant topics.”

“This vague and confusing law is so clearly unconstitutional that we hope the court will grant summary judgment striking it down and let New Hampshire educators teach honestly about history, gender, race or identity,” said AFT-New Hampshire President Deb Howes. “The divisive concepts law has forced teachers to look over their shoulders and fear that a lesson or conversation may cross some undefined line and jeopardize their career. Let’s put an end to silencing inquiry and discussion in our public schools and return to active learning that will enable students to become engaged citizens in the real world.”

“The truth matters and purposefully vague laws like this one are aimed directly at stopping educators from teaching the truth,” said Megan Tuttle, NEA-New Hampshire President. “Our students deserve an education that will help them better understand the lives, cultures, and experiences of others. But when the politicians who are writing the laws don’t value the experiences of people who are different from them, we get laws like this. Parents and teachers want to give kids the best education they can without politicians limiting what history they can learn or what books they can read. We hope the court agrees this law is unconstitutionally vague and strikes it down.”

“New Hampshire’s public school teachers work hard every day to ensure students develop the knowledge and critical thinking skills they need to be successful and contribute to their communities,” said Chris Erchull, attorney at GLBTQ Legal Advocates & Defenders (GLAD). “Teachers can’t do that effectively when they are subject to this vague law, with no guidance, that forces them to limit class discussions and avoid certain important topics altogether. LGBTQ+, BIPOC, and students with disabilities are being especially harmed, but the chilling effect of this law does a severe disservice to all students because their teachers can’t provide them with the complete and factual understanding of history and the people and world around them.”

Learn more about the lawsuit.