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N.H. Republicans open new front in ‘divisive concepts’ legislative debate: colleges

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Mike Ross / UNH
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Midway through a House Education Committee hearing Tuesday, a member of the committee posed a weighty question to the executive director of the American Civil Liberties Union of New Hampshire.

“There are academic people out there in New Hampshire and everywhere, who advocate in classes … for ideologies, for movements, and for people who favor the violent overthrow of our government,” said Rep. Mike Moffett, a Loudon Republican. “Is this treasonous, seditious behavior in classrooms OK with you?”

Devon Chaffee of the ACLU replied that she had no indication that that type of instruction was happening in New Hampshire higher education.

“That is not the type of activity or discussion in classrooms that we are seeing being shut down by the existing banned concepts law,” she said.

Moffett moved on. But the exchange marked the beginning of a new front in the political battle over teaching techniques in New Hampshire schools, and a preview of a bitter debate to come.

A year after passing into law a set of regulations barring K-12 teachers from certain instruction around race and gender, some Republican lawmakers are pressing to extend the regulations to the state’s public colleges and universities.

Introduced this month, House Bill 1313 would build on legislation added to the state budget trailer bill in 2021 that barred teachers from teaching that one race, gender, or other protected class was inherently superior or advantaged over another; that members of one protected were inherently oppressive over members of another class, consciously or unconsciously; and that members of one class should be treated differently from members of another class.

The law empowers parents to make complaints about instruction in schools, and teachers could see their credentials revoked if the New Hampshire Commission for Human Rights or a superior court finds them in violation of the law.

Under HB 1313, the Legislature would add higher education institutions to the original bill, sometimes referred to as the “divisive concepts” bill.

Republicans say it’s the logical extension of a piece of legislation they see as an anti-discrimination bill. Advocates of the original bill that was signed into law by Gov. Chris Sununu as part of the state budget say it protected students from being exposed to ideologically driven teachings about the presence of oppression – and from being labeled oppressors themselves.

“One should not convey to any individual that his or her color, creed, or other defining characteristics is inherently racist, sexist, or oppressive. whether consciously or unconsciously,” said Rep Rick Ladd, the bill’s primary sponsor and the chairman of the Education Committee.

“Any instructor aligning and communicating one’s own vision of race relations with a national narrative that uses diversity and inclusion as its platform is unacceptable,” Ladd, a Haverhil Republican, continued.

But Democrats and other opponents, like the ACLU, have strenuously opposed last year’s legislation, arguing that the new teaching prohibitions are vaguely constructed and will chill teaching by incentivizing teachers to avoid nuanced discussions on racism and oppression altogether. In December, groups ranging from the National Education Association to the American Federation of Teachers and the ACLU launched two separate lawsuits against New Hampshire’s law in federal court, seeking to strike it down due to vagueness.

Extending the statute to include higher education could pose additional constitutional challenges around the protection of academic freedom, opponents argue. U.S. and state Supreme Court caselaw has historically ensured that right for professors, Chaffee said.

“Anyone who assigned a book that (a parent or student) perceives is banned by the act could file a superior court lawsuit against the professor’s school and potentially the professor themselves,” Chaffee said. “It’s no wonder that educators are acting out of caution and fear. And because of that students are missing out on critically important discussions on race and gender.”

Representatives of the University System of New Hampshire and Community College System of New Hampshire are also speaking against the proposed expansion. Addressing lawmakers on the Education Committee, Shannon Reid, director of government affairs for the Community College System, said that the newly proposed expansion could prove confusing for professors and teaching staff.

“The general intent to include public post-secondary education under (the previous statute) would seem to raise contradictions with widely accepted tenets of academic freedom of college and university faculty,” Reid said. “Regardless of which way one leans on the concept, the ambiguities themselves are going to be very problematic.”

For Ladd and other supporters, the concerns around the law are misplaced. The law doesn’t prevent college professors from discussing concepts at the heart of “critical race theory,” systematic oppression, or historical racism, Ladd argued. Instead it would prevent the academics from teaching any one concept of racial or gender power dynamics as fact, he said.

“We’re not saying that you can’t be teaching issues that are in our past that have dealt with race, but you’re not going to advocate it as your personal belief,” he said.

But Ladd and others say the law is also an attempt to distinguish the past from the present, and prevent a portrait of modern day society that suggests oppression still widely exists.

“The false national narrative that professes that all states suffer from centuries of white privilege, white supremacy, and systematic racism does not reflect New Hampshire,” Ladd argued. “Any instruction promoting that racism is alive and well in New Hampshire does not reflect post-secondary education in our state. Nor does it accurately portray our residents, particularly those who have been here for generations.”

One hearing attendee, Louise Spencer, co-founder of the progressive Kent Street Coalition, took issue with that objective, pointing to speeches by Martin Luther King Jr. arguing that America would need decades to attain racial equity and historical education.

To Spencer, the proposed law is at odds with the goals of higher education, arguing that colleges and post-secondary institutions should be spaces where students and professors can debate and disagree.

“One of the greatest things I achieved out of my college education was the ability to have these very difficult and painful discussions at times,” Spencer said. “That really is the best of what a college education can offer. I do not need to agree with my professor, nor does my professor need to agree with me.”

HB 1313 has a journey ahead: The House Education Committee will vote on whether to recommend the bill be passed in the coming weeks, and the bill will advance to the House floor for a full vote afterward.

The debate comes as some Republicans are seeking to expand the “divisive concepts” law in K-12 schools, with a group of House representatives introducing House Bill 1255, which would create a “teacher’s loyalty” statute that would prevent teachers from instructing “any doctrine or theory promoting a negative account or representation of the founding and history of the United States.”

Democrats, meanwhile, are pushing bills to repeal the new law. House Bill 1090 and Senate Bill 304 would both undo the previous “divisive concepts” law, and specify that “no education law of this state shall be construed to bar any school employee from teaching the historical or current experiences of any group that is protected from discrimination.”

New Hampshire Bulletin is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com. Follow New Hampshire Bulletin on Facebook and Twitter.

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