Changes to ‘divisive concepts’ legislation still prove divisive

New Hampshire Bulletin
Published: 6/2/2021 4:47:30 PM

When Senate Majority Leader Jeb Bradley introduced the latest version of the “divisive concepts” bill last week, he made sure to stress what it didn’t include.

The newest version of the controversial anti-critical-race-theory bill does not stop teachers from teaching about racism in American history, Bradley said. It does not prohibit public employers from hosting diversity training programs, he added.

And it does not include state speech mandates over private companies that contract with the state of New Hampshire, he said. 

Instead, Bradley said, the new bill simply prevents government entities from teaching that people are inherently oppressive because of their “immutable characteristics” – be it their race, gender, sexual orientation, and more – and it bans them from teaching that some groups have inherent social advantages.

“What this is: is an anti-discrimination proposal,” Bradley said in remarks to the Senate Finance Committee. “In other words, it affirms the 14th Amendment of the Constitution that we’re equal under the law.”

Bradley and other Senate Republicans say the new bill, which was drafted with the help of Attorney General John Formella, contains compromises and fixes that should placate critics. 

But as the legislation moves forward as part of the Senate budget bill and draws ever closer to Gov. Chris Sununu’s desk, opponents of the bill say Bradley’s amended version does little to satisfy their concerns.

In fact, they argue, the new language makes the proposed law more confusing for school districts and public employees alike. 

“Frankly, the bill is indecipherable and internally contradictory,” said Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, speaking on Bradley’s amendment. “And if legislators cannot answer basic questions as to what is banned and what is not under the bill’s text, then how are public employees supposed to know on the ground what speech is allowed and what is not?”

A major new update

The tweaks made by Bradley to the House-passed version aren’t minor cosmetic fixes. In many ways, they change its composition.

The version of the “divisive concepts” bill passed by the House – House Bill 544 – focused on private contractors. The original bill banned any company or organization with a contract with the state from hosting any training programs that taught that a person was advantaged over another by virtue of their race or gender, or that they were inherently biased for the same reason. 

The biggest liability if those companies didn’t comply: cancellation of their contract with the state. 

Since then, the bill has shifted, drawing schools and public agencies into the bill, but dropping the requirements over private contractors. And the penalties for those who violate the law have grown, too. 

Under Bradley’s amendment, which the Senate Finance Committee voted to include in the budget, 4-2, the proposed law is now housed under the umbrella of the state’s Human Rights Commission, an entirely different section of law. 

That change means that state residents would have a powerful option for recourse against those they don’t believe are following the proposed law. The Senate amendment allows any resident to bring a complaint against a school or public agency before the state’s Human Rights Commission – the body responsible for enforcing anti-discrimination laws. Those complaints could result in damages. 

Bradley’s amendment also broadens the scope of what counts as discrimination. Where the House prohibited instruction that a certain race or gender was socially advantaged over another, the Senate amendment expands that to include age, gender identity, sexual orientation, creed, marital status, familial status, mental or physical disability, religion, and national origin.

The new amendment allows public employees to opt-out of training programs they feel do not follow the requirements of the law, a major addition to the House language. The Senate version also specifically carves out instructions for schools and school teachers, including professors at the University System of New Hampshire. 

And the amendment includes a number of explicit caveats to the prohibitions. It prevents the new law from infringing on the “academic freedom” of professors, while also making clear that workforce diversity training is protected.

“Nothing in this subdivision shall be construed to prohibit racial, sexual, religious, or other workplace sensitivity training based on the inherent humanity and equality of all persons and the ideal that all persons are entitled to be treated with equality, dignity, and respect,” the law would read. 

The result is a piece of legislation that pares back some areas of the House’s bill – by removing state control over state contractors and including direct caveats – while widely expanding its scope in other areas. 

It’s also a piece of legislation that critics say is more confusing. 

Opponents unmoved

Bradley presented the bill as a major negotiation, the product of a month of intensive talks with Sen. Kevin Avard, a Nashua Republican, Senate President Chuck Morse, a Salem Republican, Senate Legal Counsel Richard Lehmann and Attorney General Formella. 

But to Bissonnette and other critics, the latest version of the “divisive concepts” bill is marred by contradictions.

For every provision that protects teachers and other officials when teaching certain things, there’s another provision that prevents them from fully doing so, Bissonnette argues.

A manager at a police agency is allowed to stage an anti-discrimination training, the new law implies but isn’t allowed to invoke the concept of implicit bias. A college professor is granted academic freedom to explore the subjects they wish but can’t present American society as intrinsically tinged by centuries-long racial oppression. 

From Bissonnette’s perspective, those contradictions make the law difficult to interpret – which could stop the lessons or training programs from happening altogether.

“This is the real danger of the bill and it may very well be the point of it – namely, to cause people to censor themselves in having important conversations on race,” Bissonnette said.

Brian Hawkins, director of government relations at the National Education Association of New Hampshire, agrees. The bill already does not contain enough clarity over where the lines are for public employees, Hawkins said in an interview. Adding in the ability for residents to bring actions against schools under the Human Rights Commission would only make it worse, he said. 

At that point, teachers and administrators might fear the repercussions of violating the new statute, even as they were unclear what those violations were, Hawkins said. 

“The combination of the two I think makes it pretty chilling for an educator,” Hawkins said. “When you have something that is just vague and convoluted here, I think it really will be a problem when it gets to actually carrying out the law.”

Some of Bradley’s changes have been welcomed. David Juvet, senior vice president at the Business and Industry Association, which represents New Hampshire businesses, said the removal of state contractors from state regulation – contractors that are often New Hampshire businesses – was a step in the right direction. 

But the BIA still opposes the bill, Juvet said, largely because its member businesses disagree with it, even if it no longer directly affects them. The bill would send the wrong message to people of color considering moving to the state, Juvet said, and could discourage minority-led startups. 

“I think the reality is those people who were opposed to the original language of the bill will continue to be opposed to it as the BIA is,” Juvet said. “Having said that, it’s better because it doesn’t impact private sector employers anymore.”

Some critics also raised concerns around the inclusion of the Human Rights Commission, an agency already struggling to work through discrimination cases in housing, employment, and business. Adding in a new area of discrimination cases could slow down the work of that commission entirely, Hawkins and others said.

For others, the concerns are more elemental.

A year after a wave of protests in 2020 prompted by police killings of Black men and women, any chilling effect on classrooms could have consequences, opponents argue. 

“Right now we’re going through, obviously, some tough conversations around race and gender equity,” Hawkins said. “And, you know, this just stifles that conversation. It doesn’t help it.”

Proponents making final pitch

Bradley and other Senate Republicans say opponents have the intent of the bill wrong. The legislation is not designed to censor or inhibit workplace training programs or nuanced discussions in high school classrooms, Republicans argue. 

Instead, they say, it’s targeted toward the removal of any instance of bias within that instruction. 

“There’s nothing in this bill that stops teaching the facts,” said Sen Bob Giuda, a Warren Republican, ahead of the Senate Finance Committee vote. “This bill is designed to ensure that facts are brought forward, not to prevent bringing them forward. It’s designed to reveal the totality of history. It is designed to prevent a bias either one way or another. And to ensure that the minds of the future generations of our state are not being unduly influenced by advocacy for such toxins as critical race theory.”

Introducing the amended bill to his colleagues last week, Bradley highlighted the protections in place to preserve the teaching and training programs that he called vital.

“(The bill) does not undermine the – necessary in my view – discussion that as a nation, as a state, we should have about our history and or current affairs,” Bradley said.  

Still, some conservatives are less pleased with the changes made since the House version. Sen. John Reagan protested that the new bill included any protections for academic freedom at all.

“The only complaint I’ve received that deals with actual discrimination and oppression of people has come from employees – faculty members in Durham at the University New Hampshire,” Reagan said. “And yet, in line 18 on the very first page, it says: ‘Nothing will be construed to limit their academic freedom.’ And they’re already abusing it.”

Giuda echoed the complaint, voicing his frustration on the floor. 

“My concern is not that instruction is provided,” Giuda said. “My concern is that advocacy is provided for these things.

“I’ll be damned if I’m gonna let the educational institutions of this state university system teach this stuff because we didn’t say you can’t advocate for it. Teaching should be neutral.” 

Bradley noted that those constitutional protections for college professors have already been adjudicated in the U.S. Supreme Court, “whether we like it or not.” Adding the qualifier was imperative, he said. 

“That was the recommendation of, you know, Mr. Lehmann, the attorney general, and others that I worked with on this,” he said, referring to the legal advice. 

In the end, Reagan and Giuda chose to vote along with the latest version of the bill. But the questions they raise could foreshadow future conflicts with more conservative members of the New Hampshire House, who must approve the budget bill after the Senate votes on it June 3.

Then comes the key test: New Hampshire’s governor. Sununu has repeatedly vowed to veto the House’s version of the ban on “divisive concepts.”

“Look, that bill, as I’ve read it to date, really limits free speech,” Sununu told NHPR in March. “You don’t control that by having a big government law that says you can’t say certain things. If that’s not changed, I’d very likely veto it.” 

The governor has not yet commented on Bradley’s amendment. 




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