Teachers in New Hampshire, along with parents, sued the state to block a new law that bars teaching “divisive concepts.” This law is part of the backlash against critical race theory, which is understood by Republicans to mean anything about racism or any subject that makes students uncomfortable. I am not a lawyer, but it seems to me that such lawsuits should add the law’s infringement on the First Amendment rights of teachers and students to teach and learn without infringement on their speech. No doubt there may soon be state legislatures banning specific books, which is also a direct violation of theFirst Amendment.

For Immediate Release
Dec. 13, 2021  

Contact:
Deb Howes
President@aft-nh.org
603-930-9248

Ori Korin
okorin@aft.org
202-374-6103

AFT-NH, Teachers, Parents File Lawsuit Against ‘Divisive Concepts’ Law
Unconstitutional Law Puts Teachers in Untenable Situation and ‘Chokes off Learning’
 

CONCORD, N.H.—In a federal lawsuit filed today, educators and parents are taking a stand against New Hampshire’s attempt to implement a vague and punishing law that makes it impossible for public school teachers to know what and how to teach, as a result of a new law commonly known as the “divisive concepts” law. By attempting to restrict the way discrimination, diversity, bias, justice and struggle is viewed or taught, the measure puts educators at the center of a nightmare scenario: They would be required to comply with a law that appears to be at odds with the state’s constitution and its law mandating a robust and well-rounded public school education—an education that includes the teaching of accurate, honest history and current events.

The federal lawsuit, brought by AFT-New Hampshire, three N.H. public school teachers and two parents, aims to protect educators from this politically motivated new state law that put teachers at risk simply for discussing accurate historical concepts in their classrooms. At last count, New Hampshire has become one of eight Republican-controlled states that have passed laws aimed at censoring discussions around race and gender in classrooms, prompted by a conservative-led and -manufactured “crisis” over critical race theory. Dozens more are considering similar legislation. 

The lawsuit, filed in U.S. District Court for the District of New Hampshire in Concord, N.H., names the state attorney general, state Education Commissioner Frank Edelblut and the state Commission for Human Rights. It asks that the court rule the divisive concepts statute is unconstitutionally vague, making it impossible for educators to teach their students. 

As the suit notes, the law is so hopelessly vague and broad that the New Hampshire attorney general and state Human Rights Commission have already had to clarify it, but their clarifications have not resolved the issues and are nonbinding, putting educators in the difficult position of having to interpret several different directives to educate their students. Teachers are at risk for not knowing what they’re legally allowed to teach in their own classrooms; they fear that if they get it wrong, they run the risk of public shaming, reputational damage, or discipline, including loss of license or termination. 

In evident contrast to the divisive concept statute, New Hampshire’s uniform educational standards require that all public and private schools teach about “intolerance, antisemitism and national, ethnic, racial or religious hatred and discrimination that have evolved in the past” and that students learn about controversial events from multiple perspectives and ideologies.

The suit comes after Gov. Chris Sununu signed the New Hampshire budget bill—which included the divisive concepts provision—into law in June and the education commissioner created a webpage to facilitate third-party actions where the public could file complaints against teachers. That, in turn, led an extremist group known as Moms for Liberty to put a $500 bounty on the head of any N.H. teacher, offering cash to any informant who successfully lodges a complaint. Since then, educators report online harassment, obscenities and vicious attacks as a direct result of this political intimidation. 

Because the law is vague and ambiguous, the suit states, it is nearly impossible for teachers to follow it, making them “highly susceptible” to arbitrary and discriminatory enforcement.

AFT-New Hampshire President Deb Howes decried the law. “This law has created fear among teachers who are not actually violating any New Hampshire law, but fear they could be targeted without evidence by people with a political agenda. Educators are terrified of losing their teaching license over simply trying to teach. This is something I never thought would happen in America,” Howes said.

Ryan Richman, a high school teacher in Plaistow, N.H., teaches world history and is a named plaintiff in the suit: 

“I ask students to discuss events in the news and their connections with the past. Nine times out of 10, they want to discuss stories about oppression and how they’ve observed or experienced it—the Rohingya genocide, the Uyghur genocide, the Black Lives Matter movement. I shouldn’t lose my license for honestly discussing current events in my classroom,” Richman said. He also questions how, under the law’s prohibitions, he and his students can honestly discuss the Nazi philosophy that the Aryan race was superior to all others, the history of human chattel slavery in the American South and its impact on African Americans, or the deep-seated racial and cultural biases of the Conquistadores toward indigenous peoples.

American Federation of Teachers President Randi Weingarten, a former civics teacher, called the law “chilling and untenable.” 

“Either teachers attempt to follow a law so defectively vague and broad that they can’t fulfill their instructional duties to adequately educate their students, or they choose to teach as they have and as the state law has long required, and risk career-ending repercussions,” Weingarten said. 

“These educators are faced with an excruciating Hobson’s choice, all at the hands of this effort to smear and shame educators, divide our communities, and deny our kids opportunities to learn and thrive. 

“Public education is the lifeblood of our democracy; its purpose is to prepare our children for life, including college, career and civic participation. The core of our job as educators is to teach critical thinking and the ability to freely evaluate ideas—that’s what helps students learn, particularly when it comes to the history of our country. We must teach both our triumphs and our mistakes, whether it’s enslavement, Japanese internment or the treatment of those with disabilities. We teach so we can help students create a better future, and that requires us to learn from the past. But this flawed law aims instead to stop that, and to politicize our schools and scapegoat the people who work in them. 

“To meet the needs of every child, educators need resources, support and clarity, not further blaming and shaming codified into law. This untenable law—and the danger it poses to educators and the kids they teach—must be struck down.” 

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The American Federation of Teachers is a union of 1.7 million professionals that champions fairness; democracy; economic opportunity; and high-quality public education, healthcare and public services for our students, their families and our communities. We are committed to advancing these principles through community engagement, organizing, collective bargaining and political activism, and especially through the work our members do.

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