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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.”

After months of concerns from district parents about his connection to anti-Israel protests, Andres Mejia, the head of SAU 16’s Diversity, Inclusion, Equity and Justice (DEIJ) Department, is resigning.

The news comes just days after an NHJournal report highlighting the six-figure salaries some DEI directors are receiving from public schools in the state.

However, the district says there is nothing to read into Mejia leaving his post this month, well before the end of the school year.

Mejia did not respond to a request for comment. But SAU 16 Superintendent Esther Asbell said he simply needed to start his new job.

“Andres was asked by his new employer to be available as soon as possible,” Asbell said.

His departure was first reported by Granite Grok.

Mejia, reportedly earning a $153,380 salary, has been a controversial figure since first being hired. He serves in the leadership of the Black Lives Matter Seacoast chapter, which has been helping organize anti-Israel protests for months.

Like many similar protests that claim to be pro-Palestinian, the group started agitating against Israel immediately after Hamas terrorists murdered 1,300 Israelis on Oct. 7. Chants of “From the River to the Sea, Palestine Will Be Free,” viewed by the Anti-Defamation League as a call for genocide, feature heavily at those demonstrations.

When at least one parent complained to Asbell about Mejia’s role in BLM during the anti-Israel protests, asking how he could defend students against bigotry when BLM was engaging in antisemitic rhetoric, Asbell defended Mejia.

“Upon review of (district policy) I do not believe our DEI-J director is in violation of the policy by holding a position as Vice Chair of Seacoast BLM,” Asbell wrote earlier this year.

It’s not the first time Mejia’s BLM association raised concern in the school community. Challenged by parents during a public meeting in 2021, Mejia refused to distance himself from the group.

“I am Black, and I can never separate myself from Black Lives Matter,” Mejia said. “My life matters.”

Since then, BLM Seacoast has publicly opposed having police officers in public schools, giving qualified immunity protection for police, and it supports having government monitoring of the personal social media accounts of police officers.

Though he’s not a classroom teacher, Mejia is also one of the lead plaintiffs in the federal lawsuit over the so-called “divisive concepts” law. The pending lawsuit was filed soon after the legislature passed an anti-discrimination law that banned teachers from “teaching that any one group is inherently inferior, superior, racist or oppressive.” The words “divisive concepts” appear nowhere in the actual statute, though the term is often used by progressives opposed to the law.

Ironically, Mejia is one of a handful of other DEI professionals whose role is to dictate what teachers are allowed to teach.

Asbell said SAU 16 is ready to hire another DEIJ director.

The head of the Timberlane Teachers’ Association says teachers should be able to do their job “without interference from parents,” the latest expression of anti-parent sentiment from teachers unions.

Coral Hampe is a Spanish teacher and head of the teachers union at Timberlane High School in Plaistow, N.H. In a message to legislators opposing HB 1015, she described parental and legal oversight as “interference.”

“Your calling is to the legislature. Others are called to medicine. Teachers are called to teach. Let us do our jobs without interference from parents and laws,” Hampe wrote.

Hampe did not respond to a request for comment on Wednesday, nor did Timberlane School Board Chair Kimberly Farah. The district and the union are currently involved in contentious contract negotiations. 

The law in question, HB 1015, would allow parents to swap out, at their own cost, any material being taught to their child that they find objectionable. The law would require parents to give the school principal written notice about their objection, and it would have the parents and school administration work together to find appropriate replacement material.

“It is appalling, although not surprising, that a teachers’ union believes they are above the law,” said House Majority Leader Jason Osborne, R-Auburn, of the bill’s cosponsors. “They want to indoctrinate our children in the same Marxist theories they hold without any recourse. If teachers were actually teaching the facts and leaving their opinions out of their curriculum, they would have nothing to fear. Clearly, that is not the case in our public schools.”

Teachers unions and their allies have become more open in their rejection of the legitimacy of parental involvement in public education. New Hampshire House Democrats are trying to overturn state education rules preventing schools from going to remote learning with some buy-in from parents.

On Monday, the Warner, N.H. Democratic Party tweeted a political cartoon mocking parents who want to review curricula as Confederate-Flag-wearing Trump supporters. The tweet was forwarded by state Rep. David Meuse (D-Portsmouth) and several other Democratic committees around the state.

The Timberlane Teachers’ Association is part of the American Federation of Teachers – New Hampshire. Deb Howes, president of AFT-NH, did not respond to a request for comment. The AFT-NH’s legislative bulletin includes a misleading statement on the proposed law, claiming it is aimed at stopping current events from being taught in the classroom. 

“We cannot think of anything more damaging to our students than removing a teacher’s ability to use current events to emphasize a topic and help our students relate so they can better understand the material. Are teachers supposed to forgo using current events in the classroom?” The bulletin states.

Current events are not mentioned in the text of the law. Instead, it requires teachers to give parents two weeks’ notice on what will be taught to their children, in order to give parents an appropriate amount of time to review material and ask questions.

Osborne said Hampe’s message betrays how out-of-touch the unions have become in public schools.

“In what world could a business live above the law and not have to answer to the very people who fund them, whether it’s a school, a private business, or even the government? I can’t imagine Market Basket would survive much longer if they wanted to sell groceries without interference from customers,” he said.

The AFT-NH, along with the other teachers’ union, the NEA-NH, are suing the state over the new anti-discrimination law that prohibits teaching any one group is superior or inferior by virtue of their race, creed, or sexual orientation. The lawsuits falsely claim that the state law prohibits teaching “divisive concepts.”

Rep. Kimberly Rice (R-Hudson), another co-sponsor of HB 1015, questioned whether or not Hampe’s statement actually speaks for teachers in the Timberlane district.

“I feel like we have parents and educators pitted against each other and that’s not the way it’s supposed to be,” Rice said.

Virginia’s newly elected Republican Gov. Glenn Younkin is borrowing a page from New Hampshire by setting up an email tipline for parents to report on teachers who use Critical Race Theory (CRT) curriculum in the classroom.

Youngkin, who won an upset victory for governor in a state Joe Biden carried by 10 points a year earlier, campaigned hard against the use of CRT in Virginia classrooms. On his first day in office, he signed an executive order banning “divisive concepts” like CRT from the state’s classrooms.

He told media this week the email tipline allows parents to report teachers “behaving objectionably.”

“We’re asking for folks to send us reports and observations that they have that will help us be aware of things like ‘privilege bingo,’ be aware of their child being denied their rights that parents have in Virginia. And we’re going to make sure we catalog it all,” Youngkin said. “This gives us a great insight into what’s happening at a school level, and that gives us further ability to make sure we’re rooting it out.”

“Privilege bingo” is an actual classroom exercise used as part of a CRT-based curriculum to highlight racial differences among students and label certain children “privileged” based on race, regardless of their actual circumstances. The Fairfax County, Va. public school system apologized for using it after parents found out about the classroom exercise and complained.

Youngkin’s moves mimic those taken by the New Hampshire Department of Education. Last fall, Commissioner Frank Edelblut set up a website that allows Granite State parents to report violations of the state’s new anti-discrimination law. New Hampshire did not directly ban the teaching of any specific concept but instead banned teaching that any group was superior or inferior based on race, creed, or sexual orientation.

“This website in support of the commission provides parents with an online site to address concerns that their child may have been discriminated against,” the DOE said in a statement when the site was launched. “Parents, guardians, and teachers are able to submit a public education intake questionnaire that will be reviewed by a [state Human Rights] commission intake coordinator to determine if there are grounds to file a formal complaint.”

Edleblut did not respond to a request for comment on Tuesday, but his staff indicated that any complaints filed through the website would go directly to the state’s Human Rights Commission (HRC). Edleblut has said that by going to the HRC, the due process rights of any teacher accused of violating the law will be protected.

Ahni Malachi, the commission’s executive director, refused to say Tuesday how many cases, if any, had been referred to her office since the website was published. She did say that no cases have been fully adjudicated at this time. But it is not clear if there are any cases pending before the commission, are still in the investigative stage, or are heading for mediation. The commission’s website lacks transparent information on the number of cases handled, and there is no public data available on the website beyond 2018 numbers.

NHJournal has reported on multiple Granite State school systems, including Manchester, Laconia, and Litchfield, that were found to be using CRT-inspired content.

New Hampshire’s anti-discrimination reporting system caught flak from teachers unions after it was learned a group of activists, Moms For Liberty, was offering a $500 bounty for the first verified report made to the commission. While Edleblut distanced himself from the bounty scheme, the heads of New Hampshire’s two teachers unions accused him of engaging in dangerous vigilantism.

“Totally innocent teachers could lose their teaching license over claims that are not backed up by any evidence. Edelblut has declared a war on teachers, a war that the overwhelming majority of New Hampshire parents will find repulsive,” AFT-New Hampshire President Deb Howes said.

Meg Tuttle, president of the NEA-NH, said Edleblut was keeping New Hampshire children from learning about injustice.

“Politicians like Commissioner Edelblut are using the dog whistle strategy of distraction, division, and intimidation in their efforts to dictate what teachers say and block kids from learning our shared stories of confronting injustice to build a more perfect union,” Tuttle said.

To date, no bounty has been paid, according to Moms For Liberty. Both the AFT and NEA have since filed independent federal lawsuits against the state over the anti-discrimination law.

The lawsuits incorrectly describe the law as banning the teaching of “divisive concepts.”

Former Allenstown Middle School instructor Daniel Rattigan has pleaded guilty to charges he threatened to mutilate state Rep. Keith Ammon (R-New Boston) and sexually assault one of his family members in response to the Republican lawmaker’s support for anti-CRT legislation.

“I’ve gotten crazy emails, but nothing like this one. It was unhinged,” Ammon said.

Rattigan, 31, pleaded guilty in Goffstown District Court on Friday to two misdemeanor counts — one for harassment and one for obstructing government administration. Two other identical charges were dismissed as part of a plea agreement.

Rattigan will not do jail time, but instead has $1,240 in fines which are suspended for one year so long as he remains on good behavior. Rattigan is not to have any contact with Ammon, other than writing an apology letter.

“I doubt it will be sincere,” Ammon said.

Rattigan was reportedly upset with Ammon’s efforts to prevent schools from teaching Critical Race Theory-based content in New Hampshire classrooms. Ammon was one of the original sponsors of HB 544, which “prohibits the dissemination of certain divisive concepts related to sex and race in state contracts, grants, and training programs.” That legislation was set aside for an anti-discrimination law passed as part of the 2021 budget.

Rattigan called Ammon a racist in the messages and he made numerous obscene and graphic threats against Ammon and a family member.

“I truly hope you get skull f***ed to death you pathetic privileged white [expletive] boi,” Rattigan wrote in one of the messages.

Rattigan sent the violent and obscene threats to Ammon via Facebook in late February, as the politics around the anti-CRT law were getting heated. Ammons said he and his family spent subsequent months worried for their safety. 

“We were making sure the house was safe and making sure there are no unexpected visitors, as you can imagine,” Ammon said.

The threats started coming in on the night of Feb. 25, and included numerous misspellings and punctuation mistakes. Ammon assumed Rattigan might have been intoxicated and would think better the next day and apologize. Instead, according to Ammon, Rattigan continued to display angry and unhinged behavior.

Ammon went to law enforcement the next day and reported the issue, first to the Protective Services of the General Court, the branch of the New Hampshire State Police that protects state representatives, and then to the New Boston Police Department. 

Rattigan lists his employment on LinkedIn as being an Educational Assistant at the Armand R. Dupont Middle School in Allenstown. The profile claims he has worked at the school since 2013. 

On Monday, Allenstown Superintendent Peter Warburton said Rattigan worked at the middle school for a month and a half in 2013 and has not been employed by the district since.

Contacted by NHJournal through his Facebook account, Rattigan asked that no story be written because he feared losing his job. He would not reveal where he works, but he minimized the repeated and escalating threats he made against Ammon and his family. 

“It was a rude empty comment that I apologized for,” Rattigan said in a message.

Rattigan’s language was extremely crude, but his claims that supporters of the anti-discrimination bill are racists echoes language used by Democratic leaders in the legislature and progressive activists. It’s an interesting claim given the law literally bans government-funded instructors from teaching that one race, sex, or group is inherently superior or inferior to another.

State Rep. Linda Harriot-Gathright (D-Nashua) opposes the anti-discrimination law because, she says, New Hampshire’s public schools are racist.

“This language robs young people of an inclusive and realistic education by targeting efforts to talk about systemic racism in schools,” she said when the law was passed. “We need to be looking at how our systems promote racial inequity and working towards solutions. Systematic racism is still alive and well.”

The New Hampshire branch of the American Federation of Teachers joined a handful of parents and teachers in a federal lawsuit Monday against “divisive concepts statute.” Only one problem: New Hampshire doesn’t have one.

The 50-page lawsuit filed in the United States District Court in Concord — which often reads like a political campaign flyer — uses the phrase “divisive concepts” 103 times, even though the “divisive concepts” bill never passed the legislature. Instead, the state passed an anti-discrimination bill attempting to stop the continued use of Critical Race Theory-inspired curricula.

The lawsuit also quotes from legislation that was never passed, as well as screenshots of social media posts by private organizations like Moms for Liberty, which are not named in the suit and have no role in New Hampshire’s education system.

“It’s not shocking to me that there’s a lawsuit, but it does shock me that the lawsuit filed completely overlooks the actual legislation that was passed,” said Ryan Terrell, the only Black member of the state Board of Education.

The lawsuit refers to the anti-discrimination law — which bans government employees from teaching or training that immutable aspects like race or sex make people inherently inferior, superior, or racist — as the “divisive concepts statute.” The actual law does not contain the phrase and explicitly allows for the teaching of U.S. history on the issue of race.

“They must have filed this lawsuit in the wrong state,” said state Rep. Jason Osborne, R-Auburn, the House Majority Leader. “New Hampshire does not have a ‘divisive concepts’ statute.

Contacted Monday evening, AFT-NH President Deb Howes, refused to answer questions before hanging up.

“Not right now, I’m the car,” she said when NH Journal’s reporter identified himself.

A national AFT spokesperson referred questions about “divisive concepts” back to Howes, but noted that many in the New Hampshire media have labeled the law as a “divisive concept” law that bans certain subjects from being taught.

State Sen. Jeb Bradley, R-Wolfeboro, can’t understand why the American Federation of Teachers wants to overturn an anti-discrimination law.

“New Hampshire’s anti-discrimination law prohibits teaching New Hampshire students that they are ‘inherently superior or inferior to people of another age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.'” Bradley said. “Clearly any instruction that teaches students they are inferior or superior due to these characteristics is discrimination and it’s terribly disappointing that this lawsuit has even been filed.”

The lawsuit was filed on behalf of teachers and parents against what they claim is a “culture war” in the classroom.

“The ‘culture wars’ have no place in New Hampshire’s classrooms. Our public school teachers and support staff are dedicated public servants who have stepped up and devoted themselves beyond measure during the pandemic to continue to teach our children,” the lawsuit states. “Yet, they are being politically targeted and threatened with public shaming and undeserved disciplinary proceedings (not to mention the cost of defending themselves) for doing their jobs in accordance with the curriculum formally adopted by the state.

“New Hampshire parents, too, are entitled to send their children to school, expecting a full and robust exchange of ideas in the classroom, uncorrupted by censorship and extremist partisanship,” according to the lawsuit.

Parents opposed to CRT-based instruction say school administrators and teachers brought the culture war into the classroom by teaching their children they are white supremacists or part of upholding white supremacy, regardless of their behavior or beliefs.

Terrell opposed the original bill as censorship and an overstep. The anti-discrimination law that passed is something he supports, since it reinforces the American principle of equality, without dictating what can be taught in the classroom. He said the NH AFT’s lawsuit presumes New Hampshire teachers can’t handle nuance.

“This is a slap in the face to our teachers,” he said.

The suit names New Hampshire Education Commissioner Frank Edelblut, New Hampshire Commissioner on Human Rights chair Christian Kim and Attorney General John Fomella as defendants. 

Edelblut declined to comment, citing pending litigation.