Bill would expand K-12 ‘divisive concepts’ law to public higher education

  • "The 1619 Project," by Nikole Hannah-Jones. (One World/TNS) One World

  • Rep. Rick Ladd, the primary sponsor of HB1313, advocates for his bill at a NH House Education Committee hearing Jan 11, 2022. NH House of Representatives committee streaming—Courtesy

Monitor staff
Published: 1/13/2022 4:01:00 PM
Modified: 1/13/2022 4:00:08 PM

A bill proposed in the New Hampshire House this week seeks to expand the state’s “freedom from discrimination in education” law restricting how public school teachers can discuss racism and discrimination in the classroom, and apply it to professors at the college and university level.

The bill, HB 1313, is titled “relative to rights to freedom from discrimination in higher education,” and would add public higher education institutions like the University System and Community College System of New Hampshire to the list of public employers that are currently restricted under law from teaching that any one group of people is inherently superior, racist, sexist or oppressive, “whether consciously or unconsciously.”

The bill’s primary sponsor, Rep. Rick Ladd (R–Haverhill), said in a House Education Committee hearing Tuesday that professors should keep their personal beliefs out of the college classroom.

“The false national narrative that professes that all states suffer from centuries of white privilege, white supremacy and systematic racism does not reflect New Hampshire,” said Ladd. “Any instruction promoting that racism is alive and well in New Hampshire does not reflect post-secondary education in our state, nor does it accurately portray our residents, particularly those who have been here for generations. Nor does it address the fact that we have invested efforts to attract more individuals and families to New Hampshire, increasing diversity by nearly 75% in the decade.”

The current state law, RSA 193:40 “Freedom from Discrimination in Education and the Workplace,” was proposed in January 2021 as one of several bills nationwide banning restricting the teaching of ‘divisive concepts,’ an echo of a Trump-era federal executive order. The bill was modified and ultimately passed through a rider bill to the state budget, signed by Gov. Chris Sununu in June. The law bans public employers – including K-12 public school teachers in New Hampshire classrooms – from teaching that any group “is inherently superior or inferior,” “is inherently racist, sexist, or oppressive, whether consciously or unconsciously,” “should be discriminated against or receive adverse treatment” or “should not treat members of other identified groups equally.” Empowered by the new law, the state Department of Education created a web page in November that links to a form where parents can report any teacher for an alleged violation. Teachers found to have been in violation may be stripped of their teaching credentials. 

Critics of the current law say it restricts K-12 public school teachers’ ability to discuss with students the historical impacts of racism, sexism and other forms of discrimination, including against LGBTQ people and people with disabilities.

Although the text of the bill uses broad language about banning teaching that “any group” is superior or inferior, Rep. Ladd expressed specific concern at the hearing about white people being called racist in discussions about systemic racism or implicit bias.

“I don’t believe I should be tagged, or you should be tagged, or anyone in this room should be tagged with the idea that you are racist because of our past,” Ladd said. “Our past is our past. We can learn from it.”

Ladd also expressed concern that educators might discuss critical race theory, an academic framework of analysis that examines the impact of racism on U.S. society.

“As a parent and grandparent, I ask that schools and post-secondary institutions teach our young people to think, but not tell them what to think,” Ladd said. “Advocating CRT is discriminatory and does not reflect New Hampshire’s way of life, and certainly doesn't align with Dr. [Martin Luther] King’s vision. In fact, it does the opposite, pitting people against each other.”

ACLU New Hampshire Executive Director Devon Chaffee spoke against Ladd’s bill at Tuesday’s hearing, saying it violates freedom of speech under the First Amendment to the U.S. Constitution, as well as Supreme Court precedents that have long protected academic freedom for colleges and universities.

“Silencing a particular viewpoint – here we’re talking about concepts related to racism and sexism – violates the First Amendment, period.” Chaffee said. “Moreover, as it stands, the ‘banned concepts act,’ is so unclear and vague, that it fails to provide the necessary guidance to educators about what they can and cannot include in their courses. HB1313 would only compound this defect by applying the concept to colleges and universities, where academic freedom is particularly protected under the First Amendment.” 

The current RSA 193:40 is already the subject of two pending federal lawsuits, claiming the law violates freedom of speech under the First Amendment and also that it violates the Fourteenth Amendment for being too vague. The lawsuits, brought by local teachers’ unions and other activist organizations, say the lack of clarity in the law has a “chilling” effect on teachers, who are avoiding discussing racism and discrimination entirely, for fear of being reported.

“The ‘banned concepts’ language that is being proposed has already created a chill that effectively prevents teachers from doing what society needs them to do, which is teach our students,” said Brian Hawkins, director of government relations for the National Education Association New Hampshire, the state’s largest teachers’ union. “The law has resulted in the curbing of essential teaching practices, such as competency-based learning and critical thinking, so why would we want to expand this law into higher education?”

Both Tom Cronin, director of government relations for the University System of New Hampshire and Shannon Reid, director of government affairs for the Community College System of New Hampshire, spoke against the bill at a hearing Friday. 

“The general intent to include public post-secondary education under 193:40 would seem to raise contradictions with widely-accepted tenets of academic freedom of college and university faculty,” Reid said. “We are very interested in not curbing the free flow of ideas that should characterize post-secondary education.”

The bill has been assigned to the House Education Committee. If it passes in committee, it will move to the House floor for a vote.

Eileen O

Eileen O'Grady is a Report for America corps member covering education for the Concord Monitor since spring 2020. O’Grady is the former managing editor of Scope magazine at Northeastern University in Boston, where she reported on social justice issues, community activism, local politics and the COVID-19 pandemic. She is a native Vermonter and worked as a reporter covering local politics for the Shelburne News and the Citizen. Her work has also appeared in The Boston Globe, U.S. News & World Report, The Bay State Banner, and VTDigger. She has a master’s degree in journalism from Northeastern University and a bachelor’s degree in politics and French from Mount Holyoke College, where she served as news editor for the Mount Holyoke News from 2017-2018.

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