Opinion: Time to end a bad law

By THOMAS NEWKIRK

Published: 01-27-2023 7:00 AM

Thomas Newkirk is an author and former member of the Oyster River Cooperative School Board. His book, “Literacy’s Democratic Roots: A Personal Tour Through Eight Big Ideas” will be published later this year.

It is time for the so-called “divisive concepts” restriction (passed as part of SB 2 in 2021) to be rescinded, as current HB 61 does.

As testimony on the bill demonstrated, the law has simply created confusion among teachers and a hesitancy to teach legitimate parts of American history and government. Any law has a fundamental requirement: it should be clear about what is allowed and what is prohibited. This law fails badly.

In its original version, the bill resembled “divisive concepts” bills in other states and actually included the term. It was proposed in response to a manufactured crisis about teaching Critical Race Theory in schools, despite the fact that few teachers had even heard of the concept prior to the “crisis,” and there was no real evidence it was taught.

Advocates for the final SB 2 version have argued that it is not really about “divisive concepts” at all, it is about discrimination. At its core, it is a set of prohibitions against teaching that any one group (racial, gender, religion, age, people with disabilities, and other categories) is “inherently” superior or inferior to another group or that they should be treated differently.

The primary problem with the law is its vagueness. I invite you to work your way through this prohibition that states that students may not be “taught, instructed, inculcated or compelled to express belief in or support for” the following:

That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.

If we power through the mind-numbing triple negative, I believe we come up with something like this: we cannot endorse any position that advocates differential treatment based on age, sex, etc.

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But we do this all the time. We require individual education plans for special needs students but not for regular ones. We put feminine hygiene products in girls’ bathrooms but not boys’. We offer driver's ed in high school but not elementary school. The language of the law is recklessly broad.

U.S. District Judge Paul Barbadoro was sharply critical of this vagueness in his opinion denying the NH DOE’s request for dismissal of the AFT et al. legal suit against SB 2. Barbadoro ruled against the NH DOE because the plaintiffs had a “plausible” case.

Clearly, there is more litigation to follow, but his opinion reveals the legal and educational problems of the SB 2 law.

Barbadoro notes that the stakes are high for teachers because they can potentially lose their jobs and teaching credentials if found in violation. This being the case “they should not be left to guess where the line will be drawn.”

But that’s exactly the position they are placed in. He asks whether a civics teacher can even bring up the issue of reparations for past racial discrimination because that would single out one group for differential treatment. His answer: “We simply don’t know.”

He concludes, unequivocally that the provisions of SB 2 “do not give teachers fair notice of what they and cannot teach.” Under these circumstances, with no clear lines, teachers are naturally reluctant to address any controversial issues of discrimination and racism, which is ironic given the purported intent of the law was to oppose discrimination.

The most egregious aspect of the SB 2 bill is the reporting mechanism which allows those with complaints to leapfrog over local school administrators and lodge complaints. Soon after the law went into effect, Moms for Liberty offered a $500 bounty for anyone lodging a complaint that resulted in a sanction.

Understandably, this reporting process is frightening for teachers. Even if the complaint is frivolous and dismissed, teachers want to avoid the humiliation and exposure.

It is unfortunate that HB 61, the revocation of the SB 2 prohibitions, is likely to become part of the tired and unproductive culture wars with voting following party lines. Yet I would ask all legislators to imagine the situation of teachers, working with no clear guidelines, their very careers potentially at stake.

I would ask them what this law actually accomplishes. I would ask them whether this law, because of its vagueness, just kicks the role of interpretation to courts, and will entail endless and expensive litigation.

I would ask them whether this law creates more problems than it solves.

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