(The Center Square) — New Hampshire is fighting to reverse a federal court ruling striking down a 2021 law barring schools from teaching “divisive” concepts about race and gender.
The New Hampshire Attorney General’s Office has asked the First Circuit Court of Appeals in Boston to overturn a lower court ruling invalidating a 2021 state law that prohibits teaching about systemic racism, sexism and other forms of discrimination in public schools and state-funded programs. Lawyers for the attorney general’s office argued at a Tuesday hearing that the law should be allowed to take effect.
The plaintiffs in the lawsuit, the National Education Association of New Hampshire and the American Civil Liberties Union of New Hampshire, argue that the policy is “discriminatory” and “confusing and ambiguous” and claim it would result in censorship in school classrooms. They have urged the three-judge appeals panel to uphold the lower court ruling striking the law down.
Last May, a federal judge issued an order striking down the law, siding with teachers’ unions and the American Civil Liberties Union of New Hampshire’s arguments that it is unconstitutionally vague.
In his decision, U.S. District Court Judge Paul Barbadoro wrote that the law violated teachers’ 14th Amendment rights because it was too vague for them to follow.
However, Attorney General John Formella’s office argued in its appeal that the law is not too vague and provides clear guidelines for teachers to follow. The attorney general’s office claims the plaintiffs didn’t have cause to file the lawsuit because the law hasn’t been enforced against any teachers.
“Nobody’s due process rights have been violated,” Senior Assistant Attorney General Mary A. Triick told the court during Tuesday’s hearing. “And so it’s reasonable to say when we’re talking about a federal court invalidating a state statute that has never been enforced, that has never been interpreted by the state court, that you need to meet a high standard.”
Supporters of the so-called “Right to Freedom from Discrimination and Public Workplaces and Education” law argue that it will strengthen the state’s anti-discrimination laws and improve race relations. The law allows disciplinary action to be taken against educators who violate the policy and encourages parents to file complaints.
Republican Gov. Chris Sununu signed the controversial law in 2021 as part of the two-year state budget and defended the new requirements. Sununu’s decision not to veto the provision prompted at least 10 members of the Governor’s Advisory Council on Diversity and Inclusion to resign in protest.
Teachers unions say the new law has also increased the possibility of violence against teachers. They have pointed to the group, Moms for Liberty, which offered a $500 “bounty” for parents who file complaints against teachers who violate the new law. The state has set up a website for parents to file complaints before the law was struck down last year.
The policy mirrors an executive order issued in 2020 by then-Republican President Donald Trump in response to GOP-stoked concerns about the teaching of Critical Race Theory. That order was rescinded by President Joe Biden, a Democrat.
Even as the appeal process plays out in court, Republican lawmakers are seeking to amend the law to give it more enforcement teeth. House Bill 50, which was approved by the GOP-controlled state House of Representatives last month, would allow teachers to be sanctioned by the State Board of Education after “intentional or knowing violation” of the law.
