New Hampshire Federal Court Rules Against Teaching Banned Concepts Law

This story was revised on May 28 at 5 p.m.

Patrick Keefe expressed his desire to incorporate Toni Morrison’s “Beloved” into his teaching curriculum.

The English teacher at Campbell High School in Litchfield has consistently featured the Pulitzer Prize-winning novel addressing slavery’s impact in his classes. He previously engaged students in discussions on whether Morrison’s themes on slavery’s lasting effects were relevant today.

Following the enactment of a state law in 2021 that imposed restrictions on discussing race and related topics with students, Keefe became apprehensive, as revealed in his deposition last year. He feared that any discourse initiated by students on structural racism could result in complaints under the new law, potentially leading to the revocation of his teaching license.

A federal judge recently invalidated the law, citing Keefe’s concerns and those of other educators. The ruling favored teachers unions and the American Civil Liberties Union of New Hampshire, stating that the law is unconstitutionally vague.

Referencing his decision, Judge Paul Barbadoro concluded that the law, known as the “divisive concepts” or “banned concepts” law, infringed upon teachers’ 14th Amendment rights due to its ambiguous nature.

“The Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement,” Barbadoro stated concerning the law’s statutory revisions.

The law bars K-12 public school personnel from endorsing four concepts: the inherent superiority of any individual based on race, gender, sexual orientation, or other attributes; the implied inherent racist or oppressive nature of any individual towards others; advocating discrimination or adverse treatment based on any attribute; and discouraging individuals from treating others equally disregarding their characteristics.

The law’s provisions encompass a person’s “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

Modeled partly after an executive order by former President Donald Trump, repealed by President Joe Biden, the law was introduced by Republican lawmakers as an anti-discrimination measure to ensure equitable treatment of all students. Concerns were raised by Republican legislators over diversity, equity, and inclusion initiatives in public schools, alleging that educators were promoting “critical race theory” in the classroom.

The law empowered parents to report violations of the new anti-discrimination statute to the state’s Commission for Human Rights, with the State Board of Education authorized to revoke teaching licenses for violations found.

However, teachers unions and others contended that the ambiguous language in the prohibited concepts could lead to self-censorship by educators in discussing topics like race or gender, fearing professional repercussions.

In his ruling, Barbadoro sided with the state’s two teachers unions – the National Education Association of New Hampshire (NEA) and the American Federation of Teachers of New Hampshire (AFT) – arguing that the law failed to provide clear guidance on permissible teaching content.

Barbadoro’s judgment offers “declaratory relief” by deeming the law unconstitutional, without granting “injunctive relief” that would halt the law’s enforcement. He expressed confidence that the state would comply with the ruling and cease enforcing the law.

The ruling posed a setback for the state, which maintained that the Attorney General’s Office had issued adequate guidance through a “Frequently Asked Questions” document from 2021 outlining scenarios of law compliance.

No instances are known of New Hampshire teachers violating the law as per the Commission for Human Rights.

Barbadoro highlighted scenarios not covered by the FAQs, including the case of Keefe’s efforts to teach “Beloved.” 

Keefe had sought clarity from his school’s administration regarding this but received no additional guidance apart from the Attorney General’s Frequently Asked Questions, as per Barbadoro.

Another example cited was Jennifer Given, a former social studies teacher at Hollis Brookline High School, who altered her teaching methods significantly due to the law, fearing potential violations regardless of the actual content.

Barbadoro noted that the uncertainty extended to extracurricular activities, referring to the testimony of Ryan Richman, a history teacher at Timberlane Regional High School, who felt restricted in guiding the school’s Model United Nations team for competition for fear of inadvertent violations.

The examples were used by Barbadoro to underscore the law’s broader ambiguity.

“The Amendments are vague not because they subject teachers to severe professional sanctions, but because they fail to provide teachers with sufficient notice of what is prohibited and raise the specter of arbitrary and discretionary enforcement,” he concluded.

He further emphasized that the lack of clarity could lead to subjective interpretations by state officials during enforcement.

“… Because the Amendments fail to establish ‘minimal guidelines to govern [their] enforcement,’ officials are free to ‘pursue their personal predilections’ when applying the law,” Barbadoro wrote.

The ruling was praised by the plaintiffs; Gilles Bissonnette, legal director of the ACLU of New Hampshire, hailed it as “a victory for academic freedom and an inclusive education for all New Hampshire students.”

NEA-NH President Megan Tuttle concurred, stating, “New Hampshire’s ‘banned concepts’ law stifled New Hampshire teachers’ efforts to provide a true and honest education,” lauding the court’s decision.

Democratic leaders, including the primary gubernatorial candidates, lauded the ruling. Former Manchester Mayor Joyce Craig commended the plaintiffs for challenging the “unconstitutional law,” while Executive Councilor Cinde Warmington advocated for academic freedom, asserting that “Teachers should be free to teach – the truth – and students should be free to learn.”

Republicans indicated intentions to reinforce efforts in passing similar legislation. Former state Senate President Chuck Morse, a Republican gubernatorial candidate who aided in the law’s Senate passage, expressed disappointment in the ruling but affirmed a commitment to pursuing the cause.

In a post on X, State Rep. Keith Ammon, a New Boston Republican, suggested renewed focus on addressing Critical Race Theory through upcoming electoral processes.