State appealing federal court decision against ‘banned concepts’ law

The case centers around a law, known to opponents as the “divisive concepts” or “banned concepts” law, that restricts teachers and other public employees from certain teaching topics and lays out professional consequences. (Getty Images)

Months after a federal court held that a 2021 state law regulating how teachers address race, gender, and other topics was unconstitutional , New Hampshire’s Attorney General’s Office has filed an appeal.

In a filing to the First Circuit Court of Appeals in Boston announced Wednesday, the office argued that the U.S. District Court of New Hampshire was wrong to rule that the state law is unconstitutionally vague.

“The court applied the vagueness doctrine in a way that improperly second guesses the legitimate policy choices made by the State Legislature in setting curriculum within New Hampshire’s public schools,” read a press release by the Department of Justice Wednesday.

The case centers around a law, known to opponents as the “divisive concepts” or “banned concepts” law, that restricts teachers and other public employees from certain teaching topics and lays out professional consequences – including lawsuits and the potential loss of their teaching credentials – if they are found to have violated the law.

Under the law, teachers and government employees are not allowed to advocate that people of one race, gender, or other characteristic are inherently superior to or advantaged over others; that people of one characteristic are inherently oppressive toward others; that an individual should be discriminated against or receive adverse treatment for any characteristic; and that people “cannot and should not attempt to treat others without regard to” their characteristics. The law, labeled the Right to Freedom from Discrimination in Public Workplaces and Education, allows parents to file lawsuits against school districts if they believe teachers are violating the law, and allows them to file complaints with the New Hampshire Commission for Human Rights.

If a teacher is found by a court or the commission to have violated the law, the State Board of Education can take disciplinary action and potentially rescind their teachers license.

So far since the law’s passage as part of the 2021 budget, only one complaint has been brought forward, according to the Attorney General’s Office. But teachers unions and the American Civil Liberties Union say that because the prohibitions in the law are not clear, and because the professional consequences are so severe, the law has had a chilling effect on teachers who feel they cannot have nuanced discussions on race or gender.

After two teachers’ unions, the American Federation of Teachers of New Hampshire and National Education Association of New Hampshire, sued the state in conjunction with the ACLU of New Hampshire and GLBTQ Legal Advocates & Defenders, Judge Paul Barbadoro ruled in May that the law violated teachers’ 14th Amendment rights because it was unconstitutionally vague. That vagueness applied to both the way in which teachers might interpret the law and the way in which state officials might choose to punish teachers under the law, he ruled.

“… 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.

Barbadoro’s ruling struck down the law; the state is now seeking to restore it through the appeal.

“Today’s decision to appeal this misguided ruling underscores our commitment to upholding the right of duly elected legislators to enact carefully considered policy and clarity in our state laws,” Attorney General John Formella said in a statement Wednesday. “… This case is not just about legal technicalities; it’s about safeguarding the integrity of our legislative process and ensuring clarity and stability for our educators, students, and communities across New Hampshire.”

Oral arguments in the appeal in Boston are “expected to occur in the coming months,” the press release continued.

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