Civil liberties groups, the state’s largest teacher’s union, and four New Hampshire school districts have sued the state over a new law that could cut state funding to schools if they pursue diversity, equity, and inclusion initiatives.
The lawsuit, filed in the U.S. District Court in Concord on Thursday, raises two main issues: the new law’s far-reaching implications for students’ ability to learn, and the potential financial penalties for private schools, as well as public schools.
The law, enacted last month as part of the recent state budget, prohibits any DEI initiatives in schools and public agencies that seek to improve outcomes for individuals who are grouped by age, sex, gender identity, race, or disability. Only schools, however, face funding cuts if they violate the law.
Gilles Bissonnette, legal director for the ACLU of New Hampshire, which brought the lawsuit, said the law is so vague that it’s difficult for schools to comply with and easy to unintentionally violate. And the consequences are “massive,” he said.
“Under this law, the potential penalties of the New Hampshire Department of Education revoking all public funding that these schools get could be in the millions of dollars for districts,” he said.
The law’s implications are uncertain.
The lawsuit filed this week questions whether the law would prohibit things like creating girls’ sports teams to comply with federal law, offering bullying prevention for certain groups, providing college students over the age of 65 tuition waivers, or teaching students about the connection between bigotry and mass violence, as required by state law.
It also raised concerns that it could jeopardize special education services for students with disabilities. Lawmakers refuted that concern in April in interviews with NHPR.
Because the anti-DEI legislation was introduced late as a budget amendment, lawmakers did not hold a public hearing on it, as is the case with most other pieces of legislation in the State House. Bissonnette said Thursday he and other advocacy groups warned lawmakers months ago the legislation violated federal law.
“I think we knew early on that if something like this passed, there had to be a forceful response,” he said. “And I think one of the things that's represented in this case is a wide group of stakeholders that are challenging this.”
That includes New Hampshire Outright and GLBTQ Legal Advocates & Defenders, which advocate for LGBTQ youth and their families; the Somersworth, Grantham, Dover, and Oyster River school districts; a Keene State College administrator who has taught implicit bias on campus; and James McKim, and officer with the Manchester NAACP who has done DEI training for multiple state agencies. McKim and the Keene State College administrator have joined the lawsuit as individuals, not on behalf of their organizations.
Financial impacts to schools
The lawsuit argues that the law poses financial implications for both public and private schools because it applies to “any school, academic institution, or institution of higher education in this state supported by public funds.”
The lawsuit argues that definition would include private schools that receive millions in state grants. According to the lawsuit, the New Hampshire Department of Education sent a letter to several private colleges in the state, including Dartmouth College, Southern New Hampshire University, Saint Anselm College, and Thomas More College of Liberal Arts, stating they needed to comply with the new anti-DEI prohibitions.
The lawsuit said the state Department of Education has chosen not to require the same compliance from private K-12 schools that receive tens of millions of dollars from the state through the Education Freedom Account program.
Given the law’s definition of public school, the lawsuit states, “there is no basis for (the department’s) arbitrary distinction.”
Michael Garrity, spokesperson for the New Hampshire Attorney General’s Office, declined to comment on the lawsuit Thursday, writing in an email, “We will review the complaint and will respond as appropriate in court.”
In an email, Rep. Joe Sweeney, a Salem Republican who co-sponsored the legislation, called the lawsuit “a desperate attempt by radical activist groups to force their political ideology into our classrooms and state government.”
“The law we passed is simple: it stops taxpayer-funded discrimination. It ensures no student or employee is judged or stereotyped based on race, sex, or religion,” he wrote.
