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Federal judge hears arguments over N.H.'s new restrictions on classroom teaching

The U.S. Courthouse in Concord, N.H..jpg
Sarah Gibson
The U.S. District Court of New Hampshire in Concord.

A lawsuit challenging new restrictions on what New Hampshire teachers can discuss in the classroom got its first significant hearing in federal court this week.

If the case moves forward, it could be one of the country’s first tests of Republican-backed efforts to curb schools’ diversity, equity, and inclusion initiatives and reshape curriculum on race and the legacy of American racism.

At issue is a 2021 state law that prohibits teaching that a person of one group is inherently racist, superior or oppressive to other people, “either consciously or unconsciously.”

A teacher found to have violated the law could be subject to discipline or lose their license. A spokesman for the Department of Justice says only one charge has been filed since the law took effect, and that charge "is now going through the [Human Rights] Commission’s process."

But even if the law isn’t leading directly to punishment for teachers, the ACLU, teachers’ unions and a group of public school employees are arguing in court that it’s having a “chilling effect”on classroom discussions. At a hearing before a federal judge Wednesday, they said the wording of the law is too vague, and teachers are avoiding certain classroom discussions as a result. The plaintiffs also allege the new law violates teachers’ right to freedom of speech.

State attorneys, meanwhile, are trying to dismiss the case. They say the law itself and subsequent guidance from the Attorney General’s office sufficiently explain what can and can’t be taught. The state’s lawyers have also cited case law to argue that teachers, as public employees, don’t have the same level of free speech protections on the job that they do as private citizens.

At Wednesday's hearing, U.S. District Court Judge Paul Barbadoro questioned the plaintiffs’ argument that the law itself was stifling free speech and preventing teachers from doing their job. He noted that most of the complaints from the public — for example, criticizing how a teacher is discussing “To Kill a Mockingbird” — wouldn’t pass muster in a courtroom or during an investigation by the New Hampshire Commission for Human Rights, which is tasked with enforcing the law.

“I can’t see how anybody could construe ‘To Kill a Mockingbird’ as a violation of this statute,” he said.

But attorneys for the ACLU and other parties challenging the law said it was important for the case to move forward to the discovery process, in which both parties exchange evidence and other information. This step, they said, is crucial to understanding how the state is investigating complaints and enforcing the law.

Barbadoro also questioned whether the state’s existing guidance on the law gave teachers a “reasonable fear” that they could be punished over lessons that even unknowingly hinted at one of the concepts banned under the new legislation.

The state’s lawyer, Sam Garland, said the judge could choose to interpret the law with a “narrower construction” and referred to a state-issued FAQ to clear up any confusion.

Barbadoro said he expects to issue a decision on whether to dismiss the case in the next 60 to 90 days. If the case moves forward, he said the two sides will discuss the scope of a discovery, which he says could be “focused” and completed within a few months.

Editor's note: This story was updated shortly after it was first published to include additional information about complaints connected to the new law.

Sarah Gibson joined NHPR's newsroom in 2018. She reports on education and demographics.
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