New Hampshire Challenges Federal Court Decision on ‘Banned Concepts’ Law

Months after a federal court ruled that a state law from 2021 that regulates how teachers discuss race, gender, and other topics was found unconstitutional, the Attorney General’s Office of New Hampshire has filed an appeal.

In a submission to the First Circuit Court of Appeals in Boston made public on Wednesday, the office contended that the U.S. District Court of New Hampshire erred in declaring the state law as unconstitutionally unclear.

“The court’s interpretation of the vagueness doctrine improperly challenges the valid policy decisions of the State Legislature concerning curriculum in New Hampshire’s public schools,” a press release from the Department of Justice on Wednesday stated.

The case revolves around a statute, referred to by opponents as the “divisive concepts” or “banned concepts” law, that places restrictions on teachers and other public workers from discussing certain subjects and outlines potential professional repercussions – including legal action and potential loss of their teaching credentials – if they are deemed to have breached the law.

According to the law, teachers and public employees are prohibited from promoting the notion that individuals of a particular race, gender, or other characteristic are inherently more superior or advantaged than others; that individuals of a specific characteristic are intrinsically oppressive towards others; that an individual should face discrimination or adverse treatment based on any characteristic; and that individuals should not attempt to treat others without considering their characteristics. The law, known as the Right to Freedom from Discrimination in Public Workplaces and Education, permits parents to sue school districts if they believe teachers are violating the law, and enables them to lodge complaints with the New Hampshire Commission for Human Rights.

If a teacher is found by a court or the commission to have breached the law, the State Board of Education can take disciplinary measures and potentially revoke their teaching license.

Since the law was enacted as part of the 2021 budget, only one complaint has been reported, according to the Attorney General’s Office. However, teachers unions and the American Civil Liberties Union argue that due to the ambiguous nature of the prohibitions in the law and the serious professional consequences, teachers are apprehensive about engaging in in-depth discussions on race or gender.

Following a lawsuit filed by two teachers’ unions – the American Federation of Teachers of New Hampshire and the National Education Association of New Hampshire – with the ACLU of New Hampshire and LGBTQ Legal Advocates & Defenders, Judge Paul Barbadoro ruled in May that the law violated teachers’ 14th Amendment rights due to its unconstitutional vagueness. He found that the ambiguity pertained to both how teachers could interpret the law and how state authorities might opt to penalize teachers under the law.

“…As the Amendments fail to provide ‘minimum guidelines to regulate [their] enforcement,’ officials have the freedom to ‘pursue their personal biases’ when implementing the law,” Barbadoro stated.

Barbadoro’s decision invalidated the law, and now the state is aiming to reinstate it through the appeal.

“The decision to challenge this incorrect ruling today underscores our dedication to upholding the right of duly elected lawmakers to enact well-thought-out policies and clarity in our state statutes,” Attorney General John Formella remarked in a statement on Wednesday. “…This case is not just about legal technicalities; it’s about protecting the integrity of our legislative process and ensuring clear guidelines and stability for our educators, students, and communities throughout New Hampshire.”

According to the press release, oral arguments in the appeal in Boston are “anticipated to take place in the upcoming months.”