The New Hampshire Department of Education is appealing a federal court ruling striking down the state’s controversial “divisive concepts” law, reopening a court case about whether the state can regulate how educators discuss race, gender, and other topics with students.
The appeal came two months after a federal court judge ruled that the 2021 law was “unconstitutionally vague,” a characterization that New Hampshire Attorney General John Formella argues was an overstep.
“The 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,” Formella said in a statement announcing the appeal.
The 2021 law had banned educators from teaching four concepts, including that any one group is superior to another based on a range of identity characteristics; that any one group is inherently racist or sexist; that an individual should be discriminated against based on their identity; or that students should “treat others without regard” for various identity characteristics.
The law – part of a nationwide effort by Republicans to push back against what they have described as the insertion of critical race theory into curricula – had been heavily criticized by educational advocates, including the state’s two teacher’s unions, who said it infringed upon teachers’ autonomy and served to chill classroom speech.
The May decision that the law was unconstitutional had been the first time a federal court judge had struck down a “classroom censorship” law, according to the ACLU of New Hampshire.
The case will now proceed to the First Circuit Court of Appeals in Boston. A schedule for the state and the plaintiffs — a collection of educators and teachers unions in New Hampshire – to submit their briefs and a date for oral argument have not been set, but it will likely be many months before the appeal is decided.
While the case is pending, the lower court’s decision remains in effect, and thus the 2021 law is not enforceable. In a guidance memo sent earlier this week, Formella directed various state agencies, including the Department of Education, to refuse to accept or immediately dismiss any complaints that allege violations of the law.
The legal reasoning behind the state’s appeal will not be entirely clear until its brief is filed, but Formella wrote that the district court judge “misapplied the vagueness doctrine,” which requires a criminal law to clearly state what conduct would violate it.
The state law contained “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,” Judge Paul Barbadoro wrote in his order.
The state’s decision to appeal came less than a week after Governor Chris Sununu expanded a related parental notification requirement to include any classroom materials that involve sexual orientation, gender, gender identity, or gender expression. Though the law does not ban teaching about the topics, some advocates have argued that requiring teachers to notify parents two weeks before the content is set to be taught, will have a similar effect by censoring classroom speech.
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