Police accountability commission told input not needed on ‘divisive concepts’ legislation

  • John Formella was nominated by Gov. Chris Sununu to serve as New Hampshire Attorney General. (Courtesy photograph)

Granite State News Collaborative
Published: 6/15/2021 6:03:31 PM

Members of the governor’s police accountability commission expressed disappointment after Attorney General John Formella shot down a request for an emergency meeting to discuss “divisive concepts” language in the proposed state budget. 

The legislation would prohibit discussing or teaching concepts like systemic racism or critical race theory in schools and governmental agencies. 

Members of the Commission on Law Enforcement Accountability, Community and Transparency or LEACT, expressed concern that “divisive concepts” language would undermine many of their recommendations on police reform. However, the attorney general – who helped draft the amended legislation – responded that the matter is not within the commission’s purview. 

“I very much appreciate the desire to have discussions about the referenced legislative language that is currently in the budget, and I have given this a lot of thought over the past few days,” Formella said in his letter. “However ... I think that convening the LEACT Commission to discuss, and potentially take a position on, this language would not be within the scope of the LEACT Commission’s charge.”

The commission was formed by Gov. Chris Sununu following last summer’s police killing of George Floyd that sparked months of unrest and racial reckoning nationwide.

Comprised of community and law enforcement leaders, the commission formed a comprehensive list of 48 recommendations to improve policing in New Hampshire, which Sununu has since endorsed.

Formella, who became attorney general in March, denied the request last week as the Legislature nears its budget deadline at the end of the month.

James McKim, Manchester NAACP President and LEACT member, said he believes the legislation would specifically impact the commission’s recommendation to require implicit bias and cultural competency training for police officers, judges, prosecutors and the Attorney General’s Office. McKim said implicit bias is explicitly referenced in the bill.

If passed, the new law would ban any instruction that an individual is racist, sexist or oppressive, “whether consciously or unconsciously,” based on his or her age, sex, gender identity, sexual orientation, race, marital status, familial status, mental or physical ability, religion or nation origin.

“What we have to realize is that we are all inherently biased,” McKim said. “Whether we like to admit it or not, everyone is. That statement is indicating that we should not teach implicit bias.”

Joseph Lascaze, the smart justice organizer for the American Civil Liberties Union of New Hampshire and a LEACT member, made the initial request to reconvene the commission.

“This provision ... damages efforts to create meaningful training aimed at repairing and improving the relationship between law enforcement and the communities of color they serve,” Lascaze wrote in an email to Formella on June 4.

Lascaze and Ronelle Tshiela, LEACT member and co-founder of Black Lives Matter Manchester, said in a joint statement that Formella’s decision is “inexplicable” and “harms Granite Staters.”

“Censoring and banning training on racial and implicit bias – as well as dismissing the work of the very commission tasked with addressing these issues – are the same historical tactics used to censor Black and Brown voices for generations,” Lascaze and Tshiela said in the statement. “We look forward to a time when we aren’t required to beg New Hampshire decision-makers to validate concerns raised by our communities. Until then, we will continue to advocate for impacted community members across our state.”

McKim added that LEACT’s recommendations were created unanimously, with support from members of law enforcement who sit on the commission. Following the governor’s endorsement of the recommendations through an executive order, implicit bias training is now required for new state and local police officers.

Formella did not share their concerns.

“In my view, the referenced language currently in the budget would not inhibit or have a detrimental impact on the implementation of any of the commission’s recommendations,” the attorney general wrote.

McKim said he is primarily disappointed that the commission was not given the option to discuss the topic.

“None of us really had any preconceived notions of what we might come up with after we met,” McKim said. “The fact that we asked for a meeting – that was all we asked for – we were denied an opportunity to even discuss it and the attorney general just made a decision without having discussion. That’s very disheartening.”

Kate Giaquinto, a spokesperson for the Attorney General’s Office, said Formella does not have further comment beyond what he provided in his response letter.

New Hampshire is one of 21 states that have introduced bills that would restrict teaching critical race theory or limit how teachers can discuss racism and sexism, according to a recent analysis by Education Weekly. Four states have passed such legislation: Idaho, Iowa, Oklahoma and Tennessee.

While it is too soon to see any potential effects of this wave of “divisive concepts” legislation, in Oklahoma – where the governor signed what many call a ban on critical race theory last month – one college has paused a class centered around racial inequality and white privilege.

Additionally, educators in Oklahoma and Texas have said their states’ bills are putting a chill on lessons about structural racism.

Much of the legislation moving through state governments are largely modeled after former President Donald Trump’s September executive order that blocked federal agencies, contractors and grant recipients from introducing certain “divisive concepts” in workplace training. President Joe Biden swiftly overturned the order upon taking office in January.

The order had included a ban on the ideas that “one race or sex is inherently superior to another race or sex,” “the United States is fundamentally racist or sexist” and “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

McKim said much of the language in the current proposed budget was directly lifted from Trump’s executive order.

In a September memo to federal departments and agencies, the Trump administration pinpointed critical race theory, characterizing it as “divisive, false, and demeaning propaganda.”

Coined by legal scholar and civil rights advocate Kimberlé Crenshaw, the theory is an academic practice that examines how American law and society are shaped by race and racism.

Following Trump’s executive order, the African American Policy Forum – led by Crenshaw – reported that a survey within AAPF’s network resulted in over 300 instances of canceled, altered or halted diversity programs in more than 30 states.

Multiple organizations – including the state Business and Industry Association, the Office of the Child Advocate, the New Hampshire Providers Association, and numerous school boards – have opposed the legislation tucked into the state budget.

Jenny Whidden is a Report for America corps member reporting on the New Hampshire State House and racial justice legislation for The Granite State News Collaborative, a statewide multimedia collective of nearly 20 media outlets and community partners working together. Prior to starting at the GSNC in June 2021, Whidden, of Rolling Meadows, Illinois, covered the Illinois State House and the pandemic for the Chicago Tribune. She holds a bachelor’s degree in journalism from Marquette University, where she was managing editor of the Marquette Tribune, the award-winning student paper. Whidden has reported for New Jersey’s Star-Ledger, the Milwaukee Journal Sentinel and the Milwaukee Neighborhood News Service, a nonprofit site.

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