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The New Hampshire Attorney General’s Office argued before a federal appeals court Tuesday that a federal district court was wrong when it struck down a 2021 state law barring teachers from endorsing certain concepts related to race and gender.
Appearing before the First Circuit Court of Appeals in Boston, the Attorney General’s Office argued that the earlier decision should be reversed and the law should be allowed to take effect.
Mary Triick, a lawyer for the Attorney General’s Office, disagreed with the district court that the law was too vague, and said the plaintiffs had improperly filed the lawsuit before the law had been applied against anyone. Lawyers for the plaintiffs, who include teachers unions, countered that the law is too difficult to follow and that it would unconstitutionally chill classroom discussions if allowed to stand.
The law, passed via House Bill 544 and later added to the 2021 budget bill, bars educators and public employees from endorsing any of four concepts: that people of one protected class such as race, gender, or sexual orientation are superior to those of another protected class; that people of one class are inherently oppressive of people of another class; that people of one class should receive adverse treatment compared to people of another class; and that people should not attempt to treat others without regard to their protected class.
Teachers who violate the law are in breach of the educator code of conduct and may be punished by the State Board of Education, which may take a number of actions, including suspending the teacher’s license.
The law, often referred to by opponents as the “divisive concepts law,” was inspired by an executive order signed by President Donald Trump near the end of his first term, and came about as Republicans began voicing concerns that “critical race theory” was being taught in public schools.
In May 2024, Judge Paul Barbadoro of the U.S. District Court of New Hampshire invalidated the law, ruling that the provisions amounted to “viewpoint-based restrictions on speech,” that they were too vague for educators to follow without fear of arbitrary enforcement, and that they violated the 14th Amendment.
Nearly a year later, Triick argued the law does provide clear guidelines for teachers to follow. And she noted that federal case law and New Hampshire statute both say that state and local governments are allowed to curtail and direct public school teachers’ speech so long as it is speech directly related to their teaching.
“The reason teachers don’t have First Amendment protections in their curricular speech is because it doesn’t offend the First Amendment when the state says, ‘we have these public schools and we are going to control what our students are taught in the public schools, and we’re going to hire teachers to teach those things,’” she said.
She added: “I do think that we can get to a point if you say that the state cannot control that speech, can that teacher say anything to that student? Like, what if the teacher is saying that the beliefs of the Nazis were a good idea? Like, the state obviously has a right to control that speech.”
Triick also noted the plaintiffs had filed the lawsuit without being able to point to a specific case in which the new laws had been unfairly applied to teachers or other public employees — a move known as a “pre-enforcement facial vagueness challenge.” Without such a case, the district court should not have struck down the law, Triick said.
“Nobody has had this statute enforced against them,” she said. “Nobody’s due process rights have been violated. And so it’s reasonable to say when we’re talking about a federal court invalidating a state statute that has never been enforced, that has never been interpreted by the state court, that you need to meet a high standard. You need to prove that there’s no set of circumstances under which it could be constitutionally and reasonably enforced.”
Attorneys for the plaintiffs, meanwhile, pointed to extensive interviews they had conducted with New Hampshire state officials as part of the discovery process in which they said those officials could not answer questions about how the law should be applied.
The responses indicate the law is hard to interpret even for the departments charged with carrying out the law, argued Charles Moerdler, a lawyer for Stroock & Stroock & Lavan in New York, representing the plaintiffs.
“They don’t know, and they are enforcing it on a basis they don’t know,” Moerdler said.
And Gilles Bissonnette, legal director at the ACLU of New Hampshire, maintained the argument that the law is unconstitutionally vague and a suppression of the First Amendment. The lines between when a teacher is promoting discussion of a banned concept and when a teacher is directly endorsing that concept are too blurry to effectively navigate, Bissonnette said.
“An educator doesn’t know,” he said. “If I just assign a topic, if I … have students play devil’s advocate, if I even … have students engage in the Socratic method, are they covered? …How are educators supposed to know?”
New Hampshire Republican lawmakers are currently trying to amend the divisive concepts law, which is still on the state’s statutes despite being struck down last year. House Bill 50, which passed the House in March, would change the law so that a teacher could be punished by the State Board of Education only after “intentional or knowing violation” of the law.
Judges on the circuit court asked sharp questions of both sides. They asked Triick how teachers should follow the law if it is unclear when a teacher is interacting with a student outside of their official duties — and is thus protected by the First Amendment — and when a teacher is acting within their official duties. They also questioned how teachers could lead nuanced discussions without accidentally falling afoul of the law.
But they also challenged plaintiffs to cite any precedent in which a similar law was struck down on vagueness or free speech arguments before that law has been applied to anyone. They suggested the struggle of New Hampshire officials to answer questions about the new law could simply be because the law has not been tested yet.
“I think the problem here with just evaluating this in individual cases is that the underlying fear and harm, whether or not First Amendment interests are implicated here, is that there is inherent chill in the classroom, including curricular speech, regardless of whether it’s protected,” said Bissonnette.
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