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The federal court ruling that struck down New Hampshire’s anti-discrimination law is “misguided” and needs to be overturned, New Hampshire Attorney General John Formella said Wednesday.

Formella announced his office is appealing United States District Court Judge Paul Barbadoro’s May ruling that found New Hampshire’s law barring the teaching of discriminatory content in schools is too vague and, therefore, violates the constitutional rights of educators. 

 “Today’s decision to appeal this misguided ruling underscores our commitment to upholding the right of duly elected legislators to enact carefully considered policy and clarity in our state laws,” Formella said. 

The law, misleadingly labeled a “divisive concepts ban” by critics and the left-leaning press, seeks to stop teachers and other government employees from presenting discriminatory ideas as facts. Under the law,  teachers and schools:

• Cannot “teach, advocate, instruct, or train” people that one group is inherently superior or inferior to another.
• Cannot teach that people are inherently racist, sexist, etc., based on the group they’re in.
• Cannot teach that people should be discriminated against based on their group.
• Cannot 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. 

Barbadoro’s ruling opened the door for CRT-based lessons to return.

Barbadoro argued the attempt to prevent teachers from telling students they are racist, sexist, etc. crossed the line into viewpoint discrimination due to the vagueness of the law.

“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 anti-discrimination law gave parents the ability to bring complaints when they believed schools and teachers were engaging in discriminatory lessons. Barbadoro’s ruling shuts down the avenue for parents, according to Formella. 

“By appealing this decision, we aim to ensure that our laws are interpreted and applied in a manner that respects both the constitution and the democratic process,” Formella said. “This case is not just about legal technicalities; it’s about safeguarding the integrity of our legislative process and ensuring clarity and stability for our educators, students, and communities across New Hampshire.”

As part of his appeal announcement on Wednesday, Formella also issued new guidelines for the state’s Human Rights Commission, Department of Education, and Department of Labor on handling any parental complaints.

The Human Rights Commission is to accept all complaints but dismiss allegations that teachers or schools violated the anti-discrimination laws. The Department of Labor is to put a halt to any pending whistleblower complaints based on retaliation against people who reported anti-discrimination. The Department of Education is instructed to put a halt on all its investigations into complaints. Any pending matters for DOE adjudication are to be stayed pending the appeal.

Frank Edelblut, New Hampshire’s Education commissioner, did not respond to a request for comment. Barbadoro cited Edelblut’s attempts to clarify the law through newspaper op-eds in his ruling, saying Edelblut only added to general teacher confusion and fear.

“The threat of arbitrary enforcement based on Edelblut’s personal views has impacted teachers even in the absence of a formal complaint,” Barbadoro wrote.

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.”

Democrats and the state’s biggest teachers union say Department of Education Commissioner Frank Edelblut needs to be stopped after he called out “activist” teachers who he says undermine New Hampshire family values. 

Edelblut set off a firestorm when he drew attention to classroom materials and teacher assignments he says show there is a problem between teachers and families. Many families in New Hampshire feel their values are being undermined in the classroom, he told NH Journal.

“The actions of some educators, which have become increasingly apparent through social media as a result of the pandemic, are undermining the sacred trust that educators hold. Our education system needs that trust to exist,” he said.

Edelblut called out schools that are teaching woke ideology in New Hampshire classrooms. Edelblut published a 74-page document that shows teachers using materials from critical race theory activist Ibram X. Kendi, an article teaching students how to protest police, one asking students in middle school for their preferred pronouns as part of a math class orientation, and another teaching 4th graders there are multiple genders.

“Some people identify as a gender that is not male or female, some identify as more than one gender, and some people don’t identify as any gender,” states one lesson for 8- and 9-year-olds.

Concerned parents have been contacting Edelblut about the classes that he says are running against the long-held trust the parents have in teachers and schools.

“To be fair, most educators do not engage in such practices,” he said. “When you send children to school you are trusting the teachers not to undermine your values, and educators who do that run the risk of eroding that trust in all teachers.”

The teachers unions and their allies in the New Hampshire Democratic Party reacted by blasting Edelblut, saying he is targeting public education with the goal of undermining the system.

“Our commissioner has turned his clearly visible disdain for public education into a crusade not to remodel our schools, but to close them,” said Megan Tuttle, president of the NEA-NH, the state’s largest teacher’s union. “By continually destabilizing what was once a model for public education in America, he is hoping more and more parents will opt out of New Hampshire public schools and choose the private and religious ones he favors and funds so generously with our tax dollars”

House Minority Leader David Cote (D-Nashua) and Senate Minority Leader Donna Soucy, D-Manchester released a letter calling for Edelbut to be removed. They accused Edelblut of being more interested in furthering his political career than in educating New Hampshire’s children.

“Frank Edelblut does not put the best interests of New Hampshire children first. His goal is purely to enact an extreme, far-right agenda to further his own personal political ambitions, whatever they may be. He is playing games with the very futures of our children and it is simply unacceptable,” they wrote.

Florida’s Department of Education got headlines last week when it rejected 41 percent of math textbooks because they included lessons allegedly inspired by critical race theory or other controversial educational theories like “social-emotional learning.”

One math problem in a book rejected by Florida begins with the phrase “What? Me? Racist?” In another, a fifth-grade math textbook featured standard math problems with the phrase “How can you understand your feelings?”

“Math is about getting the right answer. It’s not about how you feel about the problem,” Florida Gov. Ron DeSantis (R) said last week.

Edelblut said he does not have the authority to stop schools from using any specific text.

“In New Hampshire, that’s a school board issue,” he said. “What happened in Florida would need to be done by a school board in New Hampshire.”

Instead, Edelblut is focusing on supporting most teachers who stick to teaching students free from ideology.

“We want to make sure the teachers have the training and skills to be effective in the classroom and not be undermined by educators who undermine the value systems of children and hurt parental trust of the system as a whole,” he said.

Tuttle has lashed out at Edelblut since he first published the document, saying she and the other NEA-NH members are happy to be considered activists. 

“If it’s ‘activist’ to believe we all deserve the right to live, learn, work, and thrive no matter our color, immigration status or sexual orientation and gender identities—no exceptions, then every one of our members is an activist teacher,” Tuttle said in a statement directed at Edelblut. “Politicians like you push rules that restrict our freedoms and do your best to try to divide us. You are very mistaken If you believe calling us activists is an insult.”

New Hampshire will start offering state employees “anti-racism” training later this month, but the content of that training is not yet available.

And nobody wants to talk about it, either. Or whether the content based on ‘anti-racism’ theory will conflict with the state’s new anti-discrimination law.

“All executive branch employees are required to take Department of Administrative Services’ (DAS) ‘Respect and Civility in the Workplace’ training, which includes diversity training,” Gail Crowdes, the DAS administrator of programs and compliance, told NHJournal. “DAS also offers an optional course titled ‘Diversity & Inclusion: Awareness to Action.’ This course will be available in mid-April 2022.”

The diversity course will be taught by Dr. Kasha Gordon, owner of Alabama-based Front Runner Leadership Training. Gordon signed a two-year contract with the state in February to provide leadership training and coaching to state employees. She is paid between $900 and $1,200 per class for the online courses.

Gordon declined to speak about her offerings when contacted.

A brief, two-page “course syllabus” is available, listing study materials and overall goals, one of which is, “Develop a strategy to improve your anti-racist practices, policies and procedures, and how to take immediate action to correct them.”

“Anti-racism” is a political ideology popularized by the author Ibram X. Kendi based on the premise that all White people are racists.

The new training is in response to an incident at the Concord office of the New Hampshire Department of Health and Human Services. Police were called by employees of DHHS and the Department of Environmental Services in response to what they characterized as unruly behavior by Barry and Magalie Lawrence.

According to reporting by the Concord Monitor, the Lawrences came to the DHHS office to correct a problem with Magalie’s COVID-19 vaccine record. “The conversation became heated, no doubt,” Barry said. “They seemed quite dismissive.” The police were called and a state trooper responded. No arrests were made.

“This was one last straw just because of the nature of it,” Magalie Lawrence said. “It’s a daily occurrence with the little insults, the microaggressions. It’s something that happens every day.”

In response, the activist group Change for Concord wrote a letter to the state agencies involved criticizing their handling of the incident and demanding action. The letter — signed by Clifton West of Black Lives Matter Seacoast and Siobhan Senier, Chair of UNH Department of Women’s and Gender Studies, among others — argues the act of calling the police puts the lives of Black people in danger.

“The departments [DHHS] admitted that no existing policy governs when employees may call the police to intervene with interactions involving the public; rather, they simply defer to the personal judgment of each employee,” they wrote. “Such a policy allows and ensures that race will remain unchecked as a reason that employees may call the police on members of the public. In failing to properly respond to this incident, the state has confirmed that racial bias within its system is not only conscious but accepted and normalized.”

Until that policy changes, they wrote, “we have significant concerns that state offices and facilities are unsafe for people of color.”

It appears they have gotten action.

DHHS and DES spokesmen say state employees will be undergoing mandatory diversity training, arranged by the New Hampshire Department of Administrative Services, according to DES spokesperson Jim Martin and DHHS’s Jake Leon. The anti-racism “Diversity and Inclusion” training, however, will be optional.

Neither Gordon nor Crowdes would answer whether the class was in compliance with the state’s new anti-discrimination law.

That law prohibits teaching that any group is inferior or superior to any other group based on race, ethnicity, creed, or sexual orientation. The law was enacted as a reaction to concerns about critical race theory concepts being taught in schools and to teachers.

Last year, some Manchester School District employees were forced to take a “white privilege” training class. Part of the training included a webinar entitled “What Is White Privilege, Really?” in which the instructor told participants the goal of the training was to “expand our definition of white privilege as both personal and systemic, and to understand the function of whiteness as a pillar of white supremacy and power.”

The mandate was dropped after NHJournal reported on the story.

A UNH professor requires students to find someone to accuse of being racist, homophobic, or ableist and “call them out” in order to get credit for a communications class at the state-funded college.

Edward Reynolds, a communications professor and weight lifting coach, gained notoriety this week on social media when one of the requirements for his class hit the “Libs of TikTok” account. 

According to the course work posted online, Reynolds requires his students to record the interaction they have with the person they are “calling out” for alleged bigotry and submit the recording in order to get graded. 

Calling out, sometimes described as “calling in,” is when someone is confronted over ideas or statements that are deemed politically incorrect. Reynolds, who graduated from college in Australia, instructed students, as part of their graded coursework, to seek out people in their lives who they deem are engaging in racism, homophobia, or ableism, through their language or actions.

“Call in someone on their ableist, racist, or homophobic use of language, for microaggressions (or an act of racism) towards a person of color, homophobia against LGBTQI+, or ableism against a disabled person,” the course description states. “You must also record calling them in, in order to get credit.”

The potential problems are self-evident: People targeted by Reynolds’ students may object to being called racist or bigots. They might object to being recorded. There’s even the risk of a physical confrontation.

Reynolds claims in the course description that the recordings and the names of the people “called out/called in” will not be made public. But neither Reynolds nor anyone from UNH answered New Hampshire Journal’s questions about how that anonymity will be guaranteed.

Reynolds declined to respond to multiple requests for comments, as did the UNH media relations team.  Representatives for the University System of New Hampshire declined to answer questions about Reynolds’ coursework as well.

State Rep. Joe Alexander (R-Goffstown) called Reynolds’ class a “witch-hunt.”

“As far as I’m concerned the public has a right to know why tax dollars are being spent on student witch-hunts. Make no mistake, New Hampshire institutions of higher learning are not immune to the sort of ‘woke-ness’ that is prevalent in the swampiest parts of this country. The public needs answers,” Alexander said.

Manchester’s branch of the NAACP did not respond to questions on Thursday whether “calling out” furthers goals of reducing racism and fostering racial understanding. Former President Barak Obama recently pointed out that “call-outs” give the illusion of effecting change, even when that is not true. 

“If I tweet or hashtag about how you didn’t do something right, or used the wrong word or verb, then I can sit back and feel pretty good about myself, because, ‘Man, you see how woke I was. I called you out.’ That’s not activism,” Obama said.

Karoline Leavitt, a candidate in the GOP primary for the 1st District Congressional seat, said Thursday that Reynolds’ course is a prime example of wokeism run amok.

“Let me be very clear – students should not be asked to accuse one another of racism,” Leavitt said. “Unfortunately, our teachers unions and educators have forgotten they work on behalf of the taxpayers, and our curriculum is failing our students.”

Gail Huff Brown, another GOP candidate, said Reynolds is out-of-touch.

“If one of my daughters had an assignment like this I would have been appalled and I suggest this professor get out of their academic bubble and visit the real world where the vast majority of us are friendly, tolerant, and welcoming of all people,” Huff Brown said.

Last year, New Hampshire’s legislature banned public employees from teaching that any person or group is superior or inferior based on their race, creed, or sexual identity. However, that law specifically excludes the state’s public college system. A proposal introduced this year, HB 1313, would apply the anti-discrimination law to New Hampshire colleges. 

As New Hampshire Democrats continue to deny that Critical Race Theory curriculum has made its way into Granite State classrooms, Republicans are targeting Sen. Maggie Hassan’s vote against banning funding of the radical, race-based content in classrooms.

“Critical Race Theory, and its destructive elements seeping into our public education system, has become a hot issue in school boards and statewide races across the country,” the National Republican Senatorial Committee said in a press release Thursday.

“In August of 2021, Democrats had the chance to join Republicans and vote for an amendment that would ‘prevent federal funds from being used to promote Critical Race Theory in prekindergarten, elementary, and secondary schools, and they all voted against it.”

The vote occurred during the so-called “vote-a-rama” as part of the budget reconciliation process allowing Democrats to pass President Joe Biden’s $1.9 trillion COVID-19 spending plan without any negotiations across the aisle or any votes from the GOP.

New Hampshire Sens. Hassan and Jeanne Shaheen joined their fellow Democrats in voting down the CRT ban.

“Liberals have tried their best to say the controversy is fake, made up, a conspiracy theory, contrary to reality,” the NRSC said.

That’s certainly been the case in New Hampshire, where progressive state Rep. David Meuse (D-Portsmouth) attacked NHJournal for a news report on CRT-based content in classrooms from Manchester to Laconia to Litchfield.

“The partisan hackery of  @NewHampJournal needs to be called out,” Meuse tweeted. “It’s a GOP propaganda machine—not a legitimate news source. What should be called out is veiled racism of those who think teaching kids about racism has no place in NH schools.”

New Hampshire Democratic Party chairman Ray Buckley retweeted the attack.

(The news article in question, which includes links to CRT-based classroom materials and actual images of handouts for elementary school students, can be found here.)

The use of CRT-based content is not in dispute among serious education scholars or mainstream media outlets like The New York Times and The Washington Post.

On Thursday, the Times’ Ross Douthat called out Democrats’ hollow claim that Critical Race Theory as an academic premise isn’t being taught in k-12 schools. “Yes, fourth graders in the Commonwealth of Virginia are presumably not being assigned the academic works of Derrick Bell,” he conceded.

But he argues this is no defense of the race-based, anti-White propaganda from CRT proponents like Robin DiAngelo and Ibram X. Kendi that has become common in classrooms.

For example, “the racial-equity reading list sent around in 2019 by one state educational superintendent which recommended both DiAngelo’s ‘White Fragility’ and an academic treatise titled ‘Foundations of Critical Race Theory in Education.’

‘That superintendent was responsible for Virginia’s public schools,” Douthat noted.

A national Rasmussen survey of 1,000 American adults found  57 percent said parents should be concerned about Critical Race Theory in classrooms, and 76 percent said they’re concerned that public schools may be promoting controversial beliefs and attitudes.

Just 27 percent called these concerns “phony” issues.

Hassan’s vote against a ban on funding CRT will almost certainly be used by her GOP opponent in 2022. If that opponent is Gov. Chris Sununu, he’ll be able to point to the anti-CRT language in the state budget.

Based on the reaction of Democrats and their allies in the media, it appears they’re afraid it will work.