August 17, 2023
New Filing in “Banned Concepts” Lawsuit Asks Court to Declare Law Unconstitutional
According to recent depositions, no state agency can say who is responsible for enforcing certain portions of the law, yet complaints made under the law have been elevated to school superintendents
Educators describe the law’s harmful impact on their classrooms ahead of school year with it in effect
The broad coalition of educators, advocacy groups, and law firms challenging the state’s ‘banned concepts’ law this week filed new court briefs asking for an official decision in the case to declare the law unconstitutional.
Through depositions with government actors (including the Commissioner of Education, Frank Edelblut) and documents obtained in the case that have been made public for the first time, the brief highlights how the law is actively discouraging public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom. The current case before the court consolidates two lawsuits, one filed by the American Federation of Teachers, and another filed by educators Andres Mejia and Christina Kim Philibotte and National Education Association – New Hampshire. This consolidated case alleges that the law is unconstitutionally vague under the Fourteenth Amendment and violates the First Amendment.
“It is clear that no one has a full grasp on what is or is not permissible under this law due to how vague it is–which in turn, negatively impacts teachers and students every day in the classroom,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire. “This law is an attack on educators who are simply doing their job. Through its vagueness, the ‘banned concepts’ law erases the current legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people, and people with disabilities. What results is the creation of a culture of fear and apprehension where teachers self-censor, thereby limiting students’ education and teachers’ ability to comfortably and effectively teach.”
In addition to educators self-censoring due to the lack of clarification from state agencies, the brief also explains how members of the public–following the lead of several state officials’ public statements–have adopted an expansive interpretation of the law. Because a violation of the law constitutes a violation of the New Hampshire Department of Education’s (DOE) Educator Code of Conduct, the public has sent numerous complaints to the DOE about school districts promoting diversity, equity, and inclusion principles and having students read certain books discussing race and gender. Some of the complaints include those against specific books, such as Good Kind of Trouble, written by Lisa Moore Ramée, a woman of color, about a 12-year-old girl of color in a predominantly white school, or films, including one titled, “White Like Me: Race, Racism & White Privilege in America,” or other school materials.
These complaints led the DOE to engage in varying degrees of inquiries or “initial reviews.” According to the brief, “this environment is even more challenging for educators because the DOE—including the Commissioner himself in his supervisory role—plays an active and attentive role in responding to any concerns made by purportedly aggrieved parents and community members, oftentimes elevating these concerns to school districts before there has been an investigation or assessment of whether a potential violation occurred under the Code of Conduct, or even before a formal complaint has been filed.”
Additionally, in depositions of DOE Commissioner Frank Edelblut, DOE attorney Diana Fenton, who oversees investigations of alleged violations of the Educator Code of Conduct, DOE Educator Code of Conduct investigator Richard Farrell, Executive Director of the Human Rights Commission (HRC) Ahni Malachi, and HRC Assistant Director Sarah Burke Cohen, none could explain the meaning of the law or how portions of it would be enforced.
Andres Mejia and Christina Kim Philibotte, both New Hampshire educators specializing in diversity, equity, and inclusion, are among the plaintiffs in the case represented by GLAD and ACLU-NH, and argue that this vague law unconstitutionally chills educator’s voices and prevents students from having an open and complete dialogue about the perspectives of historically marginalized communities.
Christina Kim Philibotte and Andres Mejia, two New Hampshire school administrators who are plaintiffs in the case, said, “As a result of the uncertainty around the current law, instructional choices have been chilled in order to avoid enforcement consequences. As educators, we are devoted to nurturing an equitable and inclusive school environment where all students feel seen and heard. Students must see themselves in the books they read and in the classroom discussions they have to ensure that they feel valued and to ensure that their full humanity is recognized. This law hinders these efforts at creating more inclusive educational experiences. These experiences are essential to making students feel seen and validated in a secure space, and thus making them more comfortable speaking and sharing their experiences on complex topics.”
Under the American Federation of Teachers’ (AFT) First Amendment claim, the brief states that there is no dispute that the law is “being broadly applied to the private, extracurricular speech of educators—including interactions ‘in a school hallway, schoolyard, lunchroom, or library, not to mention during extracurricular activities that take place on or off school grounds.’” One DOE investigator confirmed at deposition that these impacted activities even extend to programs occurring at off-site private facilities, such as hockey rinks, that are part of the schools’ activities.
American Federation of Teachers president Randi Weingarten said, “For New Hampshire’s education commissioner, the fear is the point. The facts in this case are so clear, and so undisputed, that the court can issue a summary judgment and make a ruling based on the law. Think about the teachers trying to follow competing state guidelines mandating the teaching of accurate and honest history who find themselves walking on eggshells. Think about those afraid to teach about the origins of slavery, or Jim Crow, or Reconstruction for fear of falling foul of this deliberately vague statute. Instead of impairing teaching and learning by creating confusion and chaos, N.H. policymakers should be passing laws that give students the resources and support they need to recover and thrive.”
AFT-New Hampshire President Deb Howes said, “This vague and confusing law is so clearly unconstitutional that we hope a judge will grant summary judgment and rule that New Hampshire teachers should be able to teach honestly about history, gender, race or identity. The divisive concepts law was sold as a solution to a problem that never actually existed. It has forced teachers to look over their shoulders and wonder if a lesson or conversation may cross some undefined line and jeopardize their career. We need to put an end to silencing inquiry and discussion in our public schools and get back to active learning, so our students are able to become engaged citizens in the real world.”
In January 2023, the federal court ruled that the case would continue, making it the fourth case across the country challenging a “banned concepts” law 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.”
“The truth matters,” said Megan Tuttle, NEA-New Hampshire president. “Purposefully vague laws like this one are aimed directly at stopping educators from teaching the truth. Our students deserve an education that will help them better understand the lives, cultures, and experiences of different people. But when the politicians who are writing the laws don’t value the experiences of people who are different than them, we get laws like this one. 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.”
Chris Erchull, Attorney at GLBTQ Legal Advocates & Defenders, said, “New Hampshire’s public school teachers work hard every day to ensure students can develop the knowledge and critical thinking skills they need to be successful and contribute to their communities. 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 is doing a severe disservice to all students, when their teachers can’t ensure they gain a full, rich understanding of history and the people and world around them.”