A federal judge ruled Tuesday that New Hampshire’s law barring the teaching of discriminatory content in schools is too vague and, therefore, violates the constitutional rights of educators.
“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,” wrote United States District Court Judge Paul Barbadoro. The judge based his ruling on the 14th Amendment protection against vague laws, and declared New Hampshire’s legislature passed a law that was nearly “unintelligible.”
The law’s supporters disagree.
Under the law tossed out by Judge Barbadoro:
- You can’t “teach, advocate, instruct, or train” people that one group is inherently superior or inferior to another.
- You can’t teach that people are inherently racist, sexist, etc., based on the group they’re in.
- You can’t teach that people should be discriminated against based on their group.
- You can’t teach people not to even try to treat people in other groups equally (the “race shouldn’t matter/colorblind” approach)
As a result, school districts like Manchester, Litchfield and Laconia could no longer use Critical Race Theory-based curriculum in their classrooms. Striking down the law will allow that content to return.
Barbadoro said the attempt to prevent teachers from telling students they are racist, sexist, etc. crossed the line into viewpoint discrimination.
“The most obvious vagueness problem is presented by the fourth concept, which prohibits teaching that individuals of one group ‘cannot and should not attempt to treat others without regard to’ their membership in another group. As other courts have observed, this language is ‘bordering on unintelligible’ because it employs the dreaded triple negative form,” Barbadoro wrote.
The judge argued the law created an untenable mix of subjective instructions and severe punishment under the law.
“Potential disciplinary sanctions include reprimand, suspension, and revocation of the educator’s certification,” Barbadoro wrote. “In other words, an educator who is found to have taught or advocated a banned concept may lose not only his or her job, but also the ability to teach anywhere in the state.”
New Hampshire Department of Education Commissioner Frank Edelblut’s office declined to comment.
Nixon Peabody attorney Morgan Nighan, who represented the plaintiffs, said a law so unclear that it cannot be followed is a clear violation of the 14th Amendment.
“No ordinary person can understand what is banned,” Nighan said. “Laws like this have been routinely struck down across the country.”
Teachers could not speak about affirmative action legal cases, Israel’s war against Hamas, or any potentially hot button current events issue for fear of breaking the law, Nighan claimed. That meant teachers avoided large sections of history or current events out of fear that could lose their licenses without knowing why.
“For example, teachers may attempt to stimulate discussion by asking students pointed questions or encourage debate by presenting students with ideas contrary to their own. When such techniques are used to explore a banned concept, it is impossible to know whether a banned concept has been impermissibly taught,” Barbadoro wrote.
Supporters of the law dismiss that claim, saying the line between teaching that racism exists and actually advocating racism is easy to see.
Attempts by Edeblut to clarify the law backfired, according to Barbadoro’s ruling. Edelblut tried to explain his views in a June 2021 newspaper oped, but that only added to the confusion and fear, Barbadoro said.
“The threat of arbitrary enforcement based on Edelblut’s personal views has impacted teachers even in the absence of a formal complaint,” Barbadoro wrote.
One incident noted in Barbadoro’s ruling involved Keene Middle School scrapping a plan to teach Ibrahim X. Kendi’s “Stamped: Racism, Antiracism, and You” after the district bought 250 copies of the books. According to the ruling, Edelblut’s column was why Keene abandoned Kendi’s book.
According to Kendi, “There’s no such thing as a ‘not racist’ or ‘race neutral’ policy,” and any person who doesn’t embrace what he calls “antiracism” — overtly treating white people differently from people of color — is engaged in racism. Some parents objected to the notion that their children would be taught that their skin color makes them inherently privileged and racist.
New Hampshire passed the anti-discrimination law as a set of amendments to the biennial budget in 2021. Rather than banning specific “divisive concepts,” the amendments sought to bar teachers from “teaching, advocating, instructing, or training” students that one group is inherently superior or inferior to another; that people are inherently racist, sexist, etc., based on the group they’re in; that people should be discriminated against based on their group; to stop people from treating other equally.
While the law allowed for teachers to discuss issues like racism and sexism in class, there was no clear legal line that distinguished such discussions from actual teaching, opponents complained.
Megan Tuttle, president of the New Hampshire NEA teachers union, said the law “stifled New Hampshire teachers’ efforts to provide a true and honest education. Students, families, and educators should rejoice over this court ruling which restores the teaching of truth and the right to learn for all Granite State students.”
Michael Garrity, spokesman for New Hampshire’s Department of Justice, said the state is reviewing Barbadoro’s ruling.
“The state is currently reviewing the court’s order and will consider next steps, including whether to appeal.”
