Brief objects to state’s motion to dismiss case

Consolidated 2021 lawsuit brought by two NH diversity, equity, and inclusion school administrators and teachers unions, AFT and NEA-NH

CONCORD, N.H. – The broad coalition of educators, advocacy groups, and law firms challenging the state’s ‘banned concepts’ law filed on Friday a new court brief objecting to the state’s attempt to dismiss the case. The brief highlights consistent and renewed concerns that the law discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom. The current case before the Court consolidates two lawsuits, one filed by educators Andres Mejia and Tina Kim Philibotte and National Education Association – New Hampshire, and one from the American Federation of Teachers.

Andres Mejia and Tina Kim Philibotte, both New Hampshire school administrators for diversity, equity, and inclusion, are among the plaintiffs in the case represented by ACLU-NH, and argue that the vague law is an unconstitutional chill on educator’s voices that prevents students from having an open and complete dialogue about the perspectives of historically marginalized communities.

“Every student deserves to feel seen, heard, and respected in New Hampshire classrooms. As we argue in our joint brief, this law creates an environment where teachers are afraid to teach certain topics to students about race, gender, sexual orientation, gender identity, and other identities. All children suffer from this censorship,” said plaintiffs Andres Mejia, the Director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, and Christina Kim Philibotte, the Chief Equity Officer for the Manchester School District. “Students from historically marginalized backgrounds are especially robbed of the right to see themselves and their lived experiences reflected in their education. As a result of the law, student voices are silenced and diverse identities denied because these students don’t get the chance to engage in meaningful conversations about their own lives. New Hampshire schools should be safe spaces for all students and teachers—not places where LGBTQ+ students and students of color have their existence rejected and erased. We are proud, as New Hampshire educators, to challenge this unconstitutional law to prevent this censorship.”

Mejia, Philibotte, and NEA-NH are represented by lawyers from a broad coalition of organizations and law firms that filed a lawsuit in December 2021, including the NEA-NH and National Education Association, the ACLU, the ACLU of New Hampshire, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders, Nixon Peabody LLP, Preti Flaherty Beliveau & Pachios LLP, and Shaheen & Gordon, P.A.

AFT-NH, which represents three New Hampshire public school teachers and two parents, filed a similar lawsuit in December 2021, which was the first filed in New Hampshire. AFT-NH filed an additional, separate brief on Friday addressing their claim that the Act violates the First Amendment of students to learn — and teachers to teach — honest history and civics issues, including by chilling and censoring discussions of modern events impacting racial injustice and gender inequality.

AFT-NH President Deb Howes said, “Educators across New Hampshire get up and go to work every day facing political pressure, dehumanization, and laws like these designed to make it nearly impossible for them to simply do their jobs. It’s not teachers bringing politics into the classrooms, it’s extremist legislators using our classrooms for political gain, and right-wing groups putting bounties on teachers’ heads. Teachers want to teach, and parents, caregivers and the broader educational community want to let them – in an increasingly divided and polarized society, our public schools can serve as places to help students make sense of the world and discuss the things happening around them. But the breadth and vagueness of this law hamstrings our state’s teachers from doing their jobs at a time when their students need them the most.”

According to the brief, the law is so unclear and vague that it fails to provide necessary guidance to educators about what they can and cannot include in their courses, and that it invites arbitrary and discriminatory enforcement—up to and including the loss of teaching licenses.

Immediately following the bill’s passage through today, one full school year later, educators have consistently reported that they are confused about what they can and cannot teach, and that they are scared of the repercussions for guessing wrong. On multiple occasions, the NEA-NH has sent letters to the state asking for specific clarification. These letters went unanswered and unacknowledged.

The brief touches on the particularly urgent nature of this confusion and concern, asking the Court to consider “the quandary faced by social studies teachers just this week confronted with student questioning after the contemporary racism-fueled massacre in Buffalo on May 14, 2022. Teachers may be asked ‘why did the shooter believe he was superior to the victims?’ ‘What is white supremacy, what are its origins, and what are the arguments advanced for and against it?’ ‘What is replacement theory?’ ‘Has anything like this happened before and, if so when and why?’ ‘What can be done to stop events like this?’”