“Banned Concepts” Law Unconstitutionally Chills Discourse on Race, Gender, Sexual Orientation, Disability, and Gender Identity in Schools and Public Workplaces

CONCORD, N.H. — A diverse group of educators, advocacy groups, and law firms filed a federal lawsuit today challenging a New Hampshire classroom censorship law, contained within state budget bill HB 2, which discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom.

New Hampshire is one of many states across the country that passed similar laws in 2021 aimed at censoring discussions around race and gender in the classroom. This is the third federal lawsuit in the country to facially challenge one of these bans, including the American Civil Liberties Union’s recently filed lawsuit challenging Oklahoma’s classroom censorship law. The New Hampshire lawsuit argues that HB 2’s vague language unconstitutionally chills educators’ voices under the 14th Amendment, and prevents students from having an open and complete dialogue about the perspectives of historically marginalized communities, as well as on topics concerning race, gender, sexual orientation, gender identity, and disability. 

The lawsuit was brought by New Hampshire school administrators Andres Mejia and Christina Kim Philibotte, who both specialize in diversity, equity, and inclusion. The lawsuit was also brought by the National Education Association – New Hampshire (NEA-NH), which is comprised of more than 17,000 member educators in New Hampshire and represents the majority of all public school employees in the state.

They are represented by lawyers from a broad coalition of organizations and law firms, including the NEA-NH and National Education Association, the ACLU, the ACLU of New Hampshire, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders, Nixon Peabody LLP, Preti Flaherty Beliveau & Pachios LLP, and Shaheen & Gordon, P.A.

“We have dedicated our careers to creating an education community where every student — including Black and Brown students, students of color, students from the LGBTQAI+ community, students with disabilities, and students from other historically marginalized identities — feel like they belong,” said plaintiff Andres Mejia, the director of diversity, equity, inclusion, and justice for the Exeter Region Cooperative School District, and plaintiff Christina Kim Philibotte, the chief equity officer for the Manchester School District. “This law chills the very type of diversity, equity, and inclusion work that is absolutely necessary to ensure that each student is seen, heard, and connected, especially as New Hampshire becomes more diverse. We are proud to join this broad coalition challenging this law.”

According to the lawsuit, the law is so unclear and vague that it fails to provide necessary guidance to educators about what they can and cannot include in their courses, and that it invites arbitrary and discriminatory enforcement — up to and including the loss of teaching licenses.

“All young people deserve to learn an inclusive and accurate history in schools, free from censorship or discrimination,” said Emerson Sykes, staff attorney at the ACLU. “This law is drafted in a way that districts and teachers have no way of knowing what concepts and ideas are prohibited. The law unconstitutionally chills students’ and educators’ rights to learn and talk about race, gender, and disability and prevents students from having open conversations about our history.”

“This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve, and from having important conversations on race, gender, disability, sexual orientation, and gender identity in the classroom,” said Gilles Bissonnette, legal director of the ACLU of New Hampshire. “It is an attack on educators who are simply doing their job. Just four months into the school year, teachers are reporting being afraid to teach under this law for fear of being taken to court. This law, through vagueness and fear, erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people, and people with disabilities.”

Following the bill’s passage, the NEA-NH began to hear from teachers that they were confused about what they could and could not teach, and that they were scared of the repercussions for guessing wrong. On multiple occasions, NEA-NH and other groups sent letters to the state asking for specific clarification. These letters went unanswered and unacknowledged.

“Teachers are trained and experienced in education and have a duty to set their students up to be successful contributors to society,” said Megan Tuttle, president of the National Education Association – New Hampshire. “Across New Hampshire, parents and educators are working together to build stronger public schools and create opportunities for students. Parents and educators agree that students should learn complete facts about historical events like slavery and civil rights. They agree that politicians shouldn’t be censoring classroom discussions between students and their teachers, and that educators shouldn’t have their licenses and livelihoods put at risk by a vague law.”

Although significant advances have been made in protecting the legal rights of people with disabilities, they continue to confront discrimination, ableism, stigma, and bias on a daily basis. For instance, in New Hampshire, school discipline has proven to be disproportionately harsh on students with disabilities, with even higher suspension rates for students of color with disabilities. Breaking down these barriers, both physical and societal, has required and continues to require open discussion about difficult subjects by people of all ages, especially by young people in educational settings.

“The banned concepts statute is a significant threat to the disability rights movement,” said Stephanie Patrick, executive director of Disability Rights Center-NH. “Necessary classroom discussions about disability, mental illness, ableism, inclusion, and other related topics will not occur if teachers fear that they will face discipline as a result. The chilling effect of this law not only threatens continued progress toward an inclusive society, it also jeopardizes the progress we have already made.”

In New Hampshire, LGBTQ+ youth face staggering levels of discrimination, with a 2019 state survey assessing school climate for LGBTQ+ youth in the state’s secondary schools finding that up to 63 percent of respondents reported verbal harassment for sexual orientation, and up to 22 percent reported physical harassment.

“Every day, dedicated teachers and administrators in New Hampshire public schools work to help students understand the world around them and prepare them for success as adults in this increasingly diverse state and country. This includes teaching the full picture of American history — both good and bad — so that students can reconcile its effect on our society in the present,” said Chris Erchull, staff attorney at GLBTQ Legal Advocates & Defenders. “Setting vague conditions on what educators can say about race, gender, gender identity, sexual orientation, and disability not only harms students with historically marginalized identities but creates a climate of fear that denies all students the freedom to learn and the opportunity to develop critical thinking skills, and to appreciate human differences.”

The lawsuit asks the court to declare the Banned Concepts Act unconstitutional under the 14th Amendment, and issue an order barring its enforcement. 

“Parents and teachers want to give kids – regardless of race and place – the best public education possible,” said NEA President Becky Pringle. “They want kids to learn and grow and to prepare them to make sense of the present and prepare for the future. While educators — in New Hampshire and across the country — work to deliver our children an accurate and honest education, some policymakers continue to deny far too many of our children the resources needed for a quality public education based on what they look like or where they live. Now those politicians want to censor instruction, threatening educators with sanctions, including the loss of their very licenses to teach, for providing honest answers to students who ask how our history affects our present and how racism and sexism continues to impact our society. Our students deserve the truth so they can build the more perfect union for which we all long. Our educators deserve our support, not sanctions for educating our children.”

Below are additional comments from:

Morgan Nighan, an attorney with Nixon Peabody LLP:
“Access to a public education that is equitable, inclusive and accurate is every students’ right. This bill attempts to censor what is taught in the classroom, to prevent honest, open dialogues about our country's history with race, gender, gender identity, sexual orientation, disabilities, and many other marginalized groups. In order to avoid repeating the mistakes of the past, we must encourage students to explore our history with a critical eye and embrace our differences as strengths.”

Asma Elhuni, movement politics director at Rights and Democracy NH:
“Every child regardless of race, gender, or religion deserves the freedom to learn and develop the knowledge and skill set to wrestle with the past, create a better future, and have the opportunity to live out their dreams. Self-interested politicians have chosen to censor the truth from our students, robbing them of the ability to understand that mistakes do and have happened, and what we do with mistakes, whether we learn from them or decide to repeat them is what matters. Rights and Democracy is thankful to see such a broad range of people in our communities coming together to challenge this unjust law. Together we will prove that when we join forces, we can build schools where every student – no matter their color or zip code they live in- have the freedom to learn honest history and stride together for a better tomorrow where everyone will have the ability to thrive.”

Maggie Fogarty, NH program director at American Friends Service Committee: “The Banned Concepts Act prevents the learning and critical thinking that are essential for a healthy society. It harms teachers and administrators who are forced to navigate its vagueness under threat of penalty, as well as students who are denied access to education about essential concepts such as racism and injustice. New Hampshire communities are weakened by the silence and fear that this Act seeks to impose. It is truth-telling that is needed now, not censorship. It is courage that is needed now, not fear. The American Friends Service Committee applauds this important lawsuit as an effort to protect public education and democracy, and to support the ongoing and urgent work for a more equitable society.”

Zandra Rice Hawkins, executive director of Granite State Progress:
“Our children deserve an honest education that teaches them about America’s triumphs and also where our country has failed to lead, so that we can continue to build a more perfect union. Far-right actors at the state and national level are using laws like this to slow progress on racial justice and diversity, equity, and inclusion efforts, and to further push for the privatization of public education. It is to our detriment as a society to let them succeed. We are thankful for this lawsuit.”

James McKim, managing partner of Organizational Ignition:
“The Right to Freedom from Discrimination statute passed as part of 2021 NH HB2 (formerly called the ‘Divisive Concepts’ statute) is an example of how seemingly well-intentioned legislation, and I am being generous here giving the benefit of the doubt that the legislation's sponsors had in mind the benefit of everyone - not just those socialized as white, can be more damaging than saying nothing. My consulting practice helping organizations benefit from the diversity in our state and nation has been significantly negatively impacted by this statute. And people of color I know around the nation have told me this legislation makes New Hampshire seem unwelcoming. It is not only poorly crafted in language, but this it was not asked for by those whom it seems to seek to protect which makes it poor governance as articulated by the NAACP's legal challenge to Executive Order 13950 (the ‘Order’) on which the New Hampshire statute was modeled. The citizens of New Hampshire, deserve better.”

Ronelle Tshiela, co-founder of Black Lives Matter Manchester:
“The law prohibiting ‘banned concepts’ is an attempt to root out teaching of systemic racism by forcing educators to be dishonest about our nation’s history. Black Lives Matter Manchester supports any effort to overturn it, and we applaud the educators who are fighting back.”

This lawsuit comes weeks before the start of the 2022 New Hampshire legislative session, which will include multiple bills designed to double down on classroom censorship. HB 1255 would expand New Hampshire’s Cold War-era “teacher loyalty” law to restrict the teaching of “any doctrine or theory promoting a negative account or representation of the founding and history of the United States.” HB 1313 would expand HB 2’s banned concepts language to include the state’s public higher education institutions. Legislation has also been introduced, including HB 1090 and SB 304, which would repeal the banned concepts language in HB 2 and replace it with language that would protect educators who teach about the “historical or current experiences” of protected groups.

This lawsuit was filed in the United States District Court for the District of New Hampshire.


The complaint can be found here: https://www.aclu.org/legal-document/complaint-challenging-nh-divisive-concepts-bill-hb2

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