State seeks to dismiss lawsuit over ‘divisive concepts’


New Hampshire’s so-called “divisive concepts” law, on the books since the governor signed the budget package last year, will still be in place for the start of the school year, despite a lawsuit asking a federal judge to declare that ‘it’s against the state constitution.

The lawsuit, a unique litigation after the consolidation of two lawsuits against the state in February, is currently awaiting a judge’s decision on whether it can proceed. State attorneys have filed a motion to dismiss the case, and attorneys for the two teachers’ unions that act as plaintiffs have filed their own responses. Judge Paul Barbadoro has scheduled a hearing for September 14.

Lawsuits were filed against the state late last year by the state chapter of the American Federation of Teachers, as well as individual parents and educators, who complained that the law, known as the name “right to freedom from discrimination in public workplaces and education”, prohibits the teaching of subjects that deal with prejudice, racism and discrimination. This lawsuit was combined with a second lawsuit filed by the National Educators Association – New Hampshire on behalf of two educators responsible for promoting diversity, equity and inclusion in their respective districts.

The combined suit names state Education Commissioner Frank Edelblut and New Hampshire Attorney General John Formella as defendants; Ahni Malachi, Executive Director of the Human Rights Commission; Christian Kim, who chairs the Human Rights Commission; and Ken Merrifield, Commissioner of the Ministry of Labour.

Motion to dismiss

In a motion filed March 25, Formella and Assistant Attorney General Samuel Garland asked Judge Barbadoro to dismiss the case, arguing that the plaintiffs had failed to prove their complaints that the law’s language was too vague to be understood. understood and that teachers’ First Amendment rights had been infringed. In their petition, state prosecutors refer to clarifying publications made both by the Commission on Human Rights, which receives public complaints about possible violations of the law, and by the Office of the Attorney General, who would be responsible for prosecuting these people. offences.

“And both sets of plaintiffs have not made viable vagueness claims because the legislative text and the guidelines produced by the enforcement agencies confirm that the new anti-discrimination provisions establish a standard of conduct that is discernible and n ‘not encourage arbitrary and discriminatory enforcement,’ state prosecutors write in their motion. “For all of these reasons, and those set out above, the Complainants’ respective claims must be dismissed in their entirety.”

Against the state’s motion, plaintiffs’ attorney Peter Perroni argued on his own initiative that the documents released by the state, intended to provide clarity, merely proved the vagueness of the law as it stands. it was written. Further, the plaintiffs said the agencies that provided this clarity had no final authority, as it would ultimately be up to the Supreme Court to decide whether a teacher’s action violated the law.

With such uncertainty, Perroni explained, teachers wonder what they can safely teach and what might put their careers at risk. “The threat of lengthy legal proceedings and public scrutiny influences educators’ choices and causes them to avoid any subject or material that could be misconstrued as a violation of the Statute,” he wrote in his objection.

Status of “divisive concepts”

Known as the “Dividing Concepts” Act, the effort to put in place restrictions on what public educators could teach originated as a standalone bill that failed to become law. . However, a redrafted version of the legislation was added to the budget package and signed by Governor Chris Sununu on June 25, 2021.

The law forbids teaching that any group of people is inherently superior or inferior to any other group. Also prohibited are teachings that a group is inherently racist, sexist or oppressive.

The law empowers the public to enforce it by inviting them to file a complaint of discrimination with the National Human Rights Commission or the office of the AG. These complaints will be investigated and if an investigation finds that a violation has occurred, the offending teacher may lose their teaching license.

Plaintiffs in the lawsuit against the state say the law is not clear enough for teachers or the public, leading educators to discard topics or literature they would otherwise have instructed their students to discuss, lest you invite a state inquiry.

When the lawsuits were filed, Sununu dismissed those complaints in a statement.

“Nothing in this language prevents schools from teaching any aspect of American history, such as teaching about racism, sexism or slavery – it just ensures that children will not be discriminated against on the basis of race, gender, sexual identity or religion,” Sununu said.

These articles are shared by The Granite State News Collaborative partners as part of our race and equity initiative. For more information, visit


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