Two separate lawsuits challenging a state law banning the discussion of discriminatory topics – like race, gender and sexual orientation – argue teachers are muting their lessons out of fear of an unconstitutionally vague edict that is harming New Hampshire school children.

“The result is the creation of a culture of fear and apprehension where teachers self-censor, thereby limiting students’ education and teachers’ ability to comfortably and effectively teach,” wrote the ACLU of New Hampshire in a new legal brief in the consolidated case. “This includes suppression of instruction vital to creating a sense of belonging for New Hampshire youth, including those from historically marginalized communities and identities. This diversity of instruction is critical to serving our increasingly diverse state.”

The joint lawsuit filed by the American Federation of Teachers and educators Andrews Mejia and Christina Kim Philibotte asks the judge to strike down the law as unconstitutionally vague under the Fourteenth Amendment and a violation of the First Amendment.

“It is clear that no one has a full grasp on what is or is not permissible under this law due to how vague it is, which, in turn, negatively impacts teachers and students every day in the classroom,” said Gilles Bissonnette, legal director of the ACLU-NH. “This law is an attack on educators who are simply trying to do their job. Through its vagueness, the ‘banned concepts’ law erases the current legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people and people with disabilities and as a result, creates a culture of fear and apprehension where teachers self censor, thereby limiting students’ education and teachers’ ability to comfortably and effectively teach.”

Members of the public are allowed to report teachers they think are in violation of the new rules based on their own interpretation of the law. The public has sent numerous complaints to the Department of Education challenging programs in school districts promoting diversity, equity and inclusion principles as well as individual teachers who have students read certain books discussing race and gender. Because a violation breaches the New Hampshire Department of Education’s Educator Code of Conduct, state officials investigate each complaint.

When asked about the law, Commissioner Frank Edelblut could not explain its meaning or how portions of it would be addressed, according to the lawsuit.

In their complaint, Mejia and Philibotte, educators that specialize in DEI efforts, argue that the law unconstitutionally silences their voices and prevents students from having an open and complete dialogue about the perspective of historically marginalized communities.

“As a result of the uncertainty around the current law, instructional choices have been chilled in order to avoid enforcement consequences. As educators, we are devoted to nurturing an equitable and inclusive school environment where all students feel seen and heard,” they wrote. “Students must see themselves in the books they read and in the classroom discussions they have to ensure that they feel valued and that their full humanity is recognized. This law hinders these efforts at creating more inclusive educational experiences which are essential to making students feel seen and validated in a secure space, and thus making them more comfortable speaking and sharing their experiences on complex topics.”

The lawsuit said the law is having its designed effect.

“For New Hampshire’s education commissioner [Edelblut], the fear is the point. The facts in this case are so clear, and so undisputed, that the court can issue a summary judgment and make a ruling based on law. Think about the teachers trying to follow competing state guidelines mandating the teaching of accurate and honest history who find themselves walking on eggshells,” AFT President Randi Weingarten said in a statement. “Think about those afraid to teach about the origins of slavery, or Jim Crow, for fear of falling foul of this deliberately vague statute. Instead of impairing teaching and learning by creating confusion and chaos, NH policymakers should be passing laws that give students the resources and support they need to recover and thrive.”

In January, the federal court ruled that the case would continue, making it the fourth case across the country challenging a similar law.

The law, which was passed in 2021, was enacted to ensure that public employees that provide or administer programs and services, including teachers in an educational setting, continually strive to treat everyone equally, according to the Department of Education website.

Called the “Right to Freedom from Discrimination in Public Workplaces and Education,” accusations are investigated by the New Hampshire Commission for Human Rights. It specifically bans any teaching and/or advocating that one identified group is inherently superior or inferior over another, inherently racist, sexist or oppressive, among other things.

In a counter argument, the Attorney General’s Office, who is representing the state, asks the court to leave the remainder of the provision in the law intact if the judge rules the anti-discrimination rules are unconstitutional in the way they apply to teachers.

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