Ethermac Exchange-New Hampshire’s limits on teaching on race and gender are unconstitutional, judge says

CONCORD,Ethermac Exchange N.H. (AP) — A federal judge has struck down New Hampshire’s nearly 3-year-old law limiting what teachers can say about race, gender, sexual orientation, disability and other topics in public schools as unconstitutionally vague. The ruling could revive the topic as an election year campaign issue.

Republicans pitched the 2021 law as an anti-discrimination measure after the Trump administration sought to ban discussion of “divisive concepts.” It prohibits teaching public school children that they’re inferior, racist, sexist or oppressive by virtue of their race, gender or other characteristics.

Teachers found to have violated the law could face discipline including the possible loss of their licenses, and could also face lawsuits.

Educators and administrators who sued the state said they were confused about what they could legally teach. They said the law violates their freedom of speech, and they feared for their jobs.

U.S. District Judge Paul Barbadoro ruled Tuesday that the law’s phrasing about banned concepts speaks only obliquely about the targeted speech, and fails “to provide teachers with much-needed clarity” about how they might apply it, both in the classroom and in extra-curricular activities where students might initiate conversations.

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“This lack of clarity sows confusion and leaves significant gaps” that can only be filled by law enforcers, which invites arbitrary and discriminatory enforcement based on a particular law enforcement authority’s point of view.

Several groups sued, including the American Civil Liberties Union of New Hampshire; the National Education Association-New Hampshire; the American Federation of Teachers-New Hampshire union; diversity, equity and inclusion school administrators; teachers and parents.

They sued New Hampshire Education Commissioner Frank Edelblut, Commission on Human Rights Chair Christian Kim, and New Hampshire Attorney General John Formella.

The judge’s decision “means that educators across New Hampshire can nurture an equitable and inclusive school environment where all students are seen and heard,” Christina Kim Philibotte and Andres Mejia, two New Hampshire school administrators who are plaintiffs in the case, said in a statement. “It is critically important that students see themselves in the books they read and in the classroom discussions they have to ensure that they feel cared for and valued.”

The attorney general’s office is reviewing the judge’s order and considering whether to file an appeal, a spokesperson said.

New Hampshire’s law is one of many in Republican-led states that have sought to restrict classroom discussions over concerns about critical race theory, which centers on the idea that racism has been systemic in the nation’s institutions.

“Judge Barbadoro just put stopping Critical Race Theory back on the ballot in November,” Republican state Rep. Keith Ammon of New Boston posted on X.

Chuck Morse, a Republican gubernatorial candidate, was president of the state Senate when the law was crafted and passed. He called the ruling “a crucial step towards creating an educational environment that focuses on unity and equality, and I will not be deterred by this setback.”