A federal judge on Thursday temporarily blocked the state of New Hampshire from penalizing school districts that fail to comply with the state’s new ban on diversity, equity, and inclusion initiatives.
The school districts, which were facing a looming Friday deadline to certify compliance with the new law, are now protected from repercussions from the Department of Education until Sept. 18, Judge Landya McCafferty ordered. The temporary extension likely buys McCafferty time to prepare a more lasting ruling.
The decision applies to the majority – but not all – districts in the state. To be covered, the district must employ a member of the National Education Association, the largest educators’ union in the state, or provide disability services to a member district, or be one of the four school districts that joined the lawsuit directly.
The National Education Association represents educators in 133 of the 180 districts in the state, according to its website, including Concord, Merrimack Valley, Hopkinton, and Bow.
Schools across the state faced the prospect of immediately losing state funding if they failed to submit a two-page compliance form to the department. The form requires the school districts to review contracts, initiatives, training, assessments, and policies for DEI-related provisions.
The law defines DEI as anything that classifies individuals on the basis of a protected characteristic for the purpose of “achieving demographic outcomes.” The law states, for example, that implicit bias training, DEI assessments, and critical race theory are prohibited.
Critics of the law have argued it is incomprehensibly vague. For example, they say it could conceivably bar school districts from dividing students by sex on sports teams or providing additional services to students with disabilities.
The plaintiffs challenging the law contend that the law would have a chilling effect on what educators can teach. Lawyers for the school district are also arguing the law would force them to violate federal anti-discrimination laws.
The Friday deadline that school districts faced to submit their certification form was instituted by the Department of Education in July, rather than by the new law itself.
The law gives school districts until Sept. 30 to submit the certifications. However, a lawyer for the department stated the office needed them earlier in order to prepare its own report, which is due on Oct. 1.
At a court hearing last week, the state acknowledged that it didn’t have a legal basis for enforcing the earlier deadline, McCafferty said in her ruling.
Forty-nine of 180 school districts had already submitted their certification forms as of Thursday, according to a public tracking page set up by the state.
In some school districts, leaders struggled over the last month with whether to sign the form, despite not believing they violated the new law.
In Hopkinton, for example, school board member Rob Nadeau wondered whether the law would restrict students in the high school’s advanced placement psychology course from learning about implicit bias.
“I do not like the law,” he said at a board meeting last month. “It’s blackmail: you need to accept our thoughts on these topics, or we’re going to halt your funding. And some of this stuff is so vague in here that it’s hard to say yes to, so it does put me in a bit of a conundrum.”
Hopkinton’s superintendent ultimately submitted the form on Wednesday, certifying that the district had not used state funds for “DEI-related activities.”
The case closely mirrors one that challenged the federal DEI ban in the spring. That lawsuit, which was also filed by the National Education Association, and presided over by McCafferty, led to the judge issuing a preliminary injunction partially blocking the law.
Her decision has been contested in the Court of Appeals.
