NH Federal Court Strikes Down ‘Banned Concepts’ Teaching Law

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This story was updated on May 28 at 5 p.m.

Patrick Keefe says he just wanted to teach Toni Morrison’s “Beloved.”

The high school English teacher has long included the Pulitzer Prize-winning novel about slavery in his curriculum at Litchfield’s Campbell High School. And in the past, he had questioned students about whether Morrison’s themes about the legacy of slavery applied to the present.

But after a state law passed in 2021 that regulated how teachers may talk about race and other concepts to students, Keefe became more cautious, he testified in a deposition last year. Any student-led discussion about structural racism might lead to a complaint under the new law, and might cause Keefe to lose his teaching license, he feared.

On Tuesday, a federal judge cited Keefe and other teachers’ examples in an order striking down the law, siding with teachers unions and the American Civil Liberties Union of New Hampshire and ruling that the law is unconstitutionally vague.

In his decision, Judge Paul Barbadoro held that the law, known by opponents as the “divisive concepts” or “banned concepts” law, violated teachers’ 14th Amendment rights because it is too vague for them to follow.

“The Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement,” Barbadoro wrote, referring to the statutory changes passed by the law.

The law prohibits K-12 public school staff from any instruction that advocates for four concepts: that a person of any race, gender, sexual orientation, or other characteristic is inherently “superior” to another; that any individual is inherently racist, sexist, or oppressive against another for any characteristic; that an individual should be discriminated against or receive adverse treatment for any characteristic; and that people of one characteristic “cannot and should not attempt to treat others without regard to” one of their characteristics.

The characteristics covered by the law are a person’s “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

The law, which was in part modeled after an executive order by President Donald Trump that applied to federal employees and was repealed by President Joe Biden, was presented by Republican lawmakers as an anti-discrimination statute meant to ensure that all students were treated equally. It came as Republican lawmakers raised concerns about diversity, equity, and inclusion efforts implemented in public schools, and argued that teachers were espousing “critical race theory” in classrooms.

The law allowed parents to bring complaints to the state’s Commission for Human Rights against teachers and school staff who they believed violated the new anti-discrimination statute. And it gave the State Board of Education the power to revoke educators’ teaching licenses if they were found by the commission to be in violation.

But teachers unions and others raised concerns that the prohibited concepts were too unclear to follow and would result in educators self-censoring instruction around certain topics such as race or gender for fear of losing their teaching credentials.

In his order Tuesday, Barbadoro sided with the state’s two teachers unions – the National Education Association of New Hampshire (NEA) and the American Federation of Teachers of New Hampshire (AFT) – who had argued that the law violated their 14th Amendment rights because it did not provide clear guidance of what teachers should or shouldn’t teach.

Barbadoro’s ruling grants “declaratory relief” to plaintiffs, meaning he is ruling that the law is unconstitutional, but it does not grant “injunctive relief” – a stricter ruling that would have stopped the state from carrying out the law. In his order, Barbadoro wrote that he didn’t believe he needed the latter relief because he believed the state would respect the ruling and stop enforcing the law.

The ruling was a setback for the state, which had argued that the Attorney General’s Office had given teachers sufficient guidance in a “Frequently Asked Questions” document released in 2021 that outlined scenarios in which teachers would violate or not violate the law.

There are no known cases of New Hampshire teachers who have been found by the Commission for Human Rights to have violated the law.

But Barbadoro said there were a number of scenarios that the FAQs did not address. One such unanswered question centered on Keefe’s attempts to teach “Beloved.” 

According to his deposition, Keefe had asked for clarity from his school’s administration but “was told there was none available other than the Attorney General’s Frequently Asked Questions,” Barbadoro noted.

Barbadoro also noted the example of Jennifer Given, a former high school social studies teacher at the Hollis Brookline High School who “felt the need to significantly modify her teaching methods ‘out of fear that [she] would be accused of’ violating the Amendments, regardless of whether she was actually doing so.”

And he argued that the uncertainty applied to extracurricular activities as well, citing the testimony of Ryan Richman, a high school history teacher at Timberlane Regional High School. Richman said as a faculty adviser for the school’s Model United Nations team, he felt the law hampered his ability to help students for their competition in fear of saying something that might be seen as a violation.

Barbadoro used the examples to bolster his larger conclusion.

“The Amendments are vague not because they subject teachers to severe professional sanctions, but because they fail to provide teachers with sufficient notice of what is prohibited and raise the specter of arbitrary and discretionary enforcement,” he ruled.

He also said that the vagueness would allow state officials to apply their own arbitrary interpretations to enforcement.

“… Because the Amendments fail to establish ‘minimal guidelines to govern [their] enforcement,’ officials are free to ‘pursue their personal predilections’ when applying the law,” Barbadoro wrote.

The decision was hailed by the plaintiffs; Gilles Bissonnette, legal director of the ACLU of New Hampshire, called it “a victory for academic freedom and an inclusive education for all New Hampshire students.”

“New Hampshire’s ‘banned concepts’ law stifled New Hampshire teachers’ efforts to provide a true and honest education,” agreed NEA-NH President Megan Tuttle in a statement. “Students, families, and educators should rejoice over this court ruling which restores the teaching of truth and the right to learn for all Granite State students.”

And it was cheered on by Democrats, including the two lead Democratic candidates for governor. Former Manchester Mayor Joyce Craig praised the plaintiffs who “fought this unconstitutional law.” In her own statement, Executive Councilor Cinde Warmington said, “Teachers should be free to teach – the truth – and students should be free to learn.”

Republicans said they would redouble efforts to pass the bill. In a statement, former state Senate President Chuck Morse, a Republican candidate for governor who had helped push for the law in the Senate, said he was “deeply disappointed” in the decision but vowed to press on.

“As Governor, I will work tirelessly with lawmakers, educators, and community leaders to draft and pass a stronger bill that addresses the court’s concerns while keeping our fundamental goal intact: to prevent the dissemination of any materials that promote racial superiority or inferiority,” Morse said.

In a post on X, State Rep. Keith Ammon, a New Boston Republican, wrote: “Judge Barbadoro just put stopping Critical Race Theory back on the ballot in November.”

New Hampshire Bulletin is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com. Follow New Hampshire Bulletin on Facebook and Twitter.

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