Escalating the conflict over the teaching of race, the American Federation of Teachers’ New Hampshire affiliate filed a lawsuit Monday charging that the state’s new law, restricting certain lessons, is unconstitutionally vague and an abridgment of free speech.
The New Hampshire law, signed over the summer, bans public schools from teaching that one’s race, sex or other characteristics are “inherently superior” to others, or that people are inherently racist, sexist or oppressive on account of their race, sex or other characteristics.
Parents or others who believe the teachers are in violation may sue school districts in court or file complaints with the state, which may discipline teachers. A conservative group called Moms for Liberty tweeted that it would pay $500 to the first person who “successfully catches a public school teacher breaking this law.”
AFT New Hampshire President Deb Howes said in a statement that the law had frightened teachers who worry they may be targeted even if they are not breaking the law. “Educators are terrified of losing their teaching license over simply trying to teach,” she said.
“Nothing in this language prevents schools from teaching any aspect of American history, such as teaching about racism, sexism or slavery,” Gov. Chris Sununu (R) said in a statement. “It simply ensures that children will not be discriminated against on the basis of race, gender, sexual identity or religion.”
Specifically, the lawsuit says the statute forces teachers to “self-censor their own free speech to avoid … severe and draconian threats.” It argues the government has not produced a compelling state interest that would justify such restrictions.
It also charges the law is unconstitutionally vague, failing to make clear to teachers what exactly is prohibited and casting a chilling effect in the classroom. The lawsuit charges that this ambiguity makes teachers susceptible to “arbitrary and discriminatory enforcement.”
The state’s education department and attorney general have issued guidance narrowing the application of the law, saying, for instance, that discussions will still be permitted about “the Black Lives Matter movement, efforts to promote equality and inclusion, or other contemporary events that impact certain identified groups.” New Hampshire Attorney General John M. Formella, who acknowledged confusion around the law’s application, also said the law allows sensitivity trainings, including those that discuss implicit bias.
But the AFT argues confusion around the law is inevitable. For example, the lawsuit says that a teacher could not be sure whether it was legal to teach students that affirmative action policies, which treat people differently based on race, were adopted because of the historical, and even contemporary, advantages that job or college applicants have when they are White.
The legislation is part of a national, conservative pushback against racial equity initiatives by schools, including teaching about racism in American history. Opponents have bucketed the entire suite of ideas under the term “critical race theory,” a concept that holds racism is systemic and baked into American institutions.
New Hampshire is one of at least 11 Republican-led states that have passed laws or approved policies limiting what educators can say about race in K-12 classrooms. More than a dozen others have considered similar policies.
The state considered but failed to pass a far more sweeping piece of legislation, which would have barred teaching of “divisive concepts.” The new, more narrow language was added to a budget bill over the summer.
On its face, state lawmakers hoped to address conversations or lessons about White privilege and White supremacy, particularly those that suggest, both historically and today, White Americans enjoy advantages even if they do not feel privileged. Conservatives complain that White children should not be told they are part of a racist system and share responsibility for bias that persists today.
The lawsuit was brought in U.S. District Court in the District of New Hampshire on behalf of three New Hampshire teachers and two parents. It names the state, its education department and commissioner of the state’s human rights department as defendants.
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