A federal judge heard arguments on Tuesday in a lawsuit that could determine the future of a New Hampshire law restricting classroom lessons on racism, sexism and other forms of oppression.
The law, championed by Republican majorities at the State House in 2021, prohibits New Hampshire teachers and public employers from teaching that any one group is inherently inferior, superior, racist or oppressive — whether unconsciously or consciously.
Earlier coverage: How New Hampshire schools are handling complaints about books, Beyoncé and more
So far, the state has only docketed one complaint against a teacher, and no teacher has been sanctioned for violating the law.
But attorneys for local teachers' unions and the ACLU of New Hampshire say the law is still harming public schools and teachers by chilling free speech. They allege that the law is too vague for teachers to understand precisely what is prohibited. The result, they say, is that teachers are censoring their lessons and avoiding certain topics.
The state says that the language of the statute, in addition to written guidance issued by the New Hampshire Attorney General, provides sufficient information on how to follow the law.
But on Tuesday, questions persisted about what curriculum and discussions were allowed.
The legal team opposing the law pointed to evidence that some educators avoid using books that have drawn public scrutiny from Education Commissioner Frank Edelblut, including "Stamped" by anti-racist scholar Ibram X. Kendi and "This Book is Anti-Racist" by Tiffany Jewell.
Senior Assistant Attorney General Sam Garland, representing the state, said that whether or not a book or discussion runs afoul of the law depends largely on context — why a lesson was assigned, whether the teacher was engaged in “deliberate, affirmative” action to teach a certain concept, and how a teacher steers a conversation among students about bias and prejudice.
Although much of the lawsuit revolves around teachers’ rights to free speech, the hearing on Tuesday also broached the question of how teachers should deal with student speech in the context of the new restrictions.
U.S. Senior District Judge Paul Barbadoro, who’s presiding over the case, asked how a teacher should respond if a student takes an implicit bias survey online and concludes that they are inherently racist as a result of their racial identity. The state’s attorney said that teacher might have to figure out how to correct the student’s statement, or provide further context, to ensure that the classroom discussion complies with the law.
A ruling in the case is expected later this year. Because the case is in federal court, an appeal by either party would send the lawsuit to the United States Court of Appeals for the First Circuit, in Boston.
