New Hampshire’s Divisive Concepts Law Was Ruled Unconstitutional, Sending a Message to the Nation
Our guest author is Deb Howes, President of AFT-NH. A version of the article originally appeared in the Concord Monitor on June 14, 2024.
A funny thing happened on New Hampshire’s way to threatening to fire teachers for teaching so-called divisive concepts involving gender, race, history and identity. U.S. District Court Judge Paul Barbadoro ruled late in May that the law was so unconstitutionally vague that teachers would be “incentivized to steer well clear of anything that could be construed as violating” the law, thus inhibiting them from doing their best work—exactly the kind of work public school students deserve to help them learn and succeed—and forcing students “to bear the costs” of the law’s ambiguity.
The federal judge’s ruling sends a strong message to other states, such as Florida, Georgia, Texas, Idaho, Tennessee, Mississippi, Alabama and South Dakota, that have passed variations of diversity, equity and inclusion laws restricting instruction on aspects of American history, sexual orientation, gender identity, race or racism.
Over the past few years in New Hampshire, extremist state lawmakers have been trying to push the envelope a little further during each legislative session with anti-public education bills, with the divisive concepts law being one of the most offensive and the one that was found to violate the 14th Amendment of the U.S. Constitution. They have won a few very close votes on bills providing millions of dollars in vouchers to be used at unaccountable private schools or other private vendors, but they went way over their skis and were defeated on many other education bills. Some that have been rejected include a parental bill of rights that would have given N.H. parents unrestricted rights to direct and micromanage their own kids’ public education—but by extension everyone else’s kids’ education too—a so-called teacher loyalty bill that would have banned teachers from promoting any theory depicting U.S. history or its founding in a negative light, and a bill requiring teachers to divulge to parents, if asked, about their child’s identity, even if it was told in confidence. The state Legislature even considered a bill to allow anyone to teach up to 30 hours a week in public schools, without any teacher certification, and even if they don’t have a college degree or don’t have any work experience in a specialized field. Luckily for our students, common sense prevailed and that was defeated too.
Public schools are where the vast majority of our children get their formative education and are the bedrock of our democracy. However, the disdain for public education—its schools, teachers and students—is unfortunately a nationwide crisis.
In Texas, the state took over the Houston public schools (which really weren’t struggling as advertised, but actually had a B+ rating) and put in place a superintendent whose policies—a slashed budget, conversion of libraries into disciplinary centers, questionable firings of principals and teachers, and mandated scripted instruction with quizzes every few minutes—have left the community begging for his ouster. Parents and members of Congress have joined teachers and students in big, loud protests.
In Florida, U.S. history standards require students to learn about slavery’s benefits, science is being ignored, LGBTQIA+ students are bullied and the Stop WOKE Act restricts discussions of race-related topics. In Arizona, parents have the right to see a list of all materials and books borrowed by their child. Book bans abound in school libraries throughout the country, (although we managed to defeat two book banning bills in NH this year).
The assault on public education, knowledge, learning, history, and critical thinking must end. Students deserve and need an honest education, access—without fear—to a wide variety of books from the school library, and the resources and supports they need to thrive. Teachers shouldn’t fear intimidation, being fired or the loss of their teaching license just for doing what they’ve been trained to do. And vague laws, like the divisive concepts law in New Hampshire, that give wide latitude to anti-public education officials, as federal judge Barbadoro said, “do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement.”
No teacher should have to live under a cloud of fear of getting fired for actually teaching accurate, honest education, and no child should be denied such an education.