A federal judge is set to rule in the coming days on whether to block the state Department of Education from imposing a deadline at the end of next week for school districts to certify that they don’t engage in diversity, equity, and inclusion initiatives.
The department has given districts until Sept. 5 to fill out a compliance form, which asks school leaders to attest that they don’t have contracts that contain “DEI-related provisions” or use state money for activities such as implicit bias trainings, DEI assessments, or critical race theory.
The department instituted the requirement in response to a new state law that prohibits schools and other public entities from spending state funds on DEI-related activities.
School leaders have pushed back, arguing that the law is unconstitutionally vague, stifles educators’ free speech rights, and could force them to violate federal anti-discrimination laws, particularly pertaining to students with disabilities.
A group that includes four school districts and the New Hampshire chapter of the National Education Association, the largest teachers’ union in the country, sued the state earlier this month, and separately asked the court to block the department from enforcing its upcoming certification requirement.
Judge Landya McCafferty has scheduled a hearing on the certification issue for Wednesday morning in Concord’s federal courthouse.
School districts received a letter on July 11 from then-education Commissioner Frank Edelblut directing them to conduct a “thorough” review of their policies, programs, contracts, and training materials and to return a “certified report” of their findings. Edelblut threatened that the department would “immediately halt” funding for any districts that failed to comply with the new law.
Twenty-seven of 180 school districts had submitted their certification forms as of Tuesday, according to a public tracking page set up by the state.
Despite not believing they violate the new law, some school boards and administrators have struggled with whether to sign the form because they don’t believe it clearly articulates what is being banned.
Hopkinton school board member Rob Nadeau wondered, for example, whether the law would restrict students in the high school’s advanced placement psychology course from learning about implicit bias.
โI do not like the law,” he said at a board meeting last week. “Itโs blackmail: you need to accept our thoughts on these topics, or weโre going to halt your funding. And some of this stuff is so vague in here that itโs hard to say yes to, so it does put me in a bit of a conundrum.”
The law gives schools until Sept. 30 to submit certifications, but the department elected to move up its deadline by more than three weeks in order to prepare its own report due on Oct. 1 and resolve any issues that the school districts’ certifications raise, assistant attorney general Brandon Chase said during a court conference earlier this month.
Chase said he didn’t believe the state would impose any penalties on school districts that failed to comply by Sept. 5.
Gilles Bissonnette, the legal director for the ACLU and one of the lawyers for the plaintiffs, said his clients believed otherwise.
โThe way our clients have looked at this letter is that itโs a requirement,” he said during the court conference. “There are penalties for not complying.”
The certification issue mirrors a similar Trump administration requirement that was challenged in the spring and partially blocked.
McCafferty, who also presided over that case, wrote in her ruling that the federal DEI ban contained “vague and confusing prohibitions.”
