Second lawsuit challenges New Hampshire ‘classroom censorship act’

  • Republican Gov. Chris Sununu announces that he is seeking a fourth term as governor of New Hampshire, instead of running for the U.S. Senate seat held by Democratic Sen. Maggie Hassan, during a news conference, Tuesday, Nov. 9, 2021, in Concord, N.H. (AP Photo/Holly Ramer) Holly Ramer

Monitor staff
Published: 12/20/2021 4:23:47 PM

The second lawsuit in two weeks has been filed against New Hampshire’s “freedom from discrimination in education law,” this one by the state’s largest teacher’s union, two school equity administrators, the state chapter of the American Civil Liberties Union and others, who say the law restricts how public school educators can teach about racism, sexism and other forms of discrimination.

The lawsuit was filed Monday by the National Education Association New Hampshire, two school diversity, equity and inclusion administrators, and their lawyers at the ACLU, the Disability Rights Center New Hampshire, GLBTQ Legal Advocates, and other law firms, who argue that the law is unconstitutionally vague because it doesn’t specify what educators can and cannot include in their courses.

“NEA-NH is here today because quite frankly, enough is enough,” union president Megan Tuttle said at a press conference Monday. “We’ve said from the beginning that the classroom censorship act vagueness was purposeful and by design to have a chilling effect on educators throughout the state. … Educators believe they can no longer allow students to dialogue with each other, to peer review each other’s work, or let students lead classroom discussion because they don’t know if student-driven learning will lead to discussions about banned topics.”

The group’s lawsuit claims New Hampshire’s “Right to Freedom from Discrimination in Public Workplaces and Education Law” is unconstitutionally vague under the Fourteenth Amendment to the U.S. Constitution, because it doesn’t specify what topics and materials can and cannot be included in lessons, while inviting “arbitrary and discriminatory enforcement.” Tuttle said NEA-NH’s requests for specific guidance on the law went unanswered by the Department of Education and the Attorney General’s office.

“Instead of trying to help educators comply with the new law, Commissioner Edelblut publicly installed mechanisms for reporting educator non-compliance and procedures that would lead to taking away teaching credentials,” Tuttle said. “That lack of guidance leaves teachers feeling confused, unsupported and fearful of running afoul of the law.”

The “Freedom from Discrimination in Education” law was passed in June through a rider bill to the state budget, and signed into law by Gov. Chris Sununu. The law prohibits teaching that groups of people are inherently superior, oppressive or racist because of “immutable characteristics” such as race, gender, and sexual orientation. Critics of the law say it restricts 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.

Empowered by the new law, Edelblut 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. The conservative group Moms for Liberty New Hampshire issued a Tweet last month, offering a $500 bounty to the first person who “catches” a public school teacher violating the law.

“Ambiguities, coupled with the law’s very severe penalties, create an environment where educators now feel compelled to self-censor, including on important topics that frankly, are critical to the diversity, equity and inclusion work that’s being done in this state,” said ACLU-NH legal director Gilles Bissonnette. “And this because if they guessed wrong, they could be hauled to court and in some instances even lose their licenses.”

The school administrator plaintiffs in the lawsuit are both diversity, equity and inclusion directors: Andres Mejia for the Exeter Region Cooperative School District and Christina Philibotte for Manchester School District. Both started their positions in the summer of 2021.

The complaint says that the “Freedom from Discrimination” law prevents Mejia from being able to do his job, which involves conducting staff training on concepts like implicit and institutional bias, racism, inclusiveness and belonging. Philibotte, who conducts staff training on culturally responsive education, has stopped using terms and concepts like “anti-racism” and “anti-bias,” and has advised others to avoid them as well, due to fear of the law’s penalties. The complaint adds that the vagueness of the law prevents both Mejia and Philibotte from being able to advise the teachers in their districts as to whether certain books and other materials violate the law.

This is the second federal lawsuit to be filed over the “Freedom from Discrimination” law this month; the American Federation of Teachers New Hampshire filed a suit Dec. 13, that also argues the law is too vague under the Fourteenth Amendment. Theirs also includes two additional claims, that the law violates freedom of speech under the First Amendment, and that it violates New Hampshire’s state Constitution, which guarantees an “adequate education” for all students.

Bissonnette said that both NEA-NH and AFT-NH were aware of each others’ plans for similar lawsuits, and the two groups support each other’s efforts. He suspects the two lawsuits may end up being combined in district court.

“They’re with us and we’re with them on this particular effort,” Bissonnette said. “We’re looking forward to collaborating with AFT in this case, they’re really critical partners in defeating this unconstitutional law.”

Sununu has defended New Hampshire’s law. On Monday, he referred the same comment he made last week when the American Federation of Teachers filed suit.

“Nothing in this language prevents schools from teaching any aspect of American history, such as teaching about racism, sexism, or slavery,” Sununu said in a statement. “It simply ensures that children will not be discriminated against on the basis of race, gender, sexual identity, or religion.”

A new “teacher loyalty” bill introduced this legislative session would take classroom restrictions even further by banning public school teachers from promoting any theory that depicts U.S. history or its founding in a negative light, including the idea that the country was founded on a basis of racism.


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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