Educators celebrate as judge strikes down New Hampshire 'banned concepts' law

Education and free speech advocates cheered Tuesday's federal court ruling striking down New Hampshire's classroom censorship law, one of several so-called "white discomfort" bills passed in Republican-controlled states in recent years.

U.S. District Judge Paul J. Barbadoro's 50-page ruling says that the New England state's so-called "banned concepts" law is "unconstitutionally vague" and contains "viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement."

Referring to statutory changes in the law, Barbadoro—an appointee of former President George H.W. Bush—wrote that "all told, the banned concepts speak only obliquely about the speech that they target and, in doing so, fail to provide teachers with much-needed clarity as to how the amendments apply to the very topics that they were meant to address."

"This lack of clarity sows confusion and leaves significant gaps that can only be filled in by those charged with enforcing the amendments, thereby inviting arbitrary enforcement," he added.

"The court's ruling today is a victory for academic freedom and an inclusive education for all New Hampshire students."

Deb Howes, president of the American Federation of Teachers-New Hampshire—which led the legal challenge to the law—said in a statement that "all New Hampshire teachers and students won big today" as the court "correctly decided that educators have the constitutional right to teach honest, accurate lessons and wasn't dragged into the clutches of the extreme right."

"The vague, unconstitutional divisive concepts law was a dreadful effort to limit truthful discussion about history, gender, race, and identity," Howes added. "The court agreed that the law unconstitutionally restricted what teachers can teach. This decision should put to rest the issue, and New Hampshire teachers will no longer have to live under a cloud of fear of getting fired for actually teaching accurate, honest education."

Similar to other "white discomfort laws" passed by Republican state legislators in states including Florida, Idaho, and Oklahoma amid the right-wing backlash against critical race theory and the broader racial justice reckoning, New Hampshire House Bill 544 bans K-12 educators from saying that the state and the United States are "fundamentally racist or sexist" or that "an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously."

Modeled after an executive order issued by former GOP President Donald Trump, the New Hampshire legislation was signed into law by Republican Gov. Chris Sununu in 2021 and also bans causing people to "feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex."

"The court's ruling today is a victory for academic freedom and an inclusive education for all New Hampshire students," said Gilles Bissonnette, legal director of the ACLU of New Hampshire. "This unconstitutional classroom censorship law had no place in New Hampshire, and we are grateful to the court for stopping the culture of fear and apprehension perpetuated in Granite State schools under this law."

Disability Rights Center-New Hampshire litigation director Jennifer Eber said that "by discouraging open and honest discussion of difficult topics related to disability, this law posed a significant threat to the disability rights movement."

"Learning about the history of institutionalization and isolation to which disabled people have been subject is fundamental to building inclusive school communities and providing students with appropriate supports and services," Eber added.

Chris Erchull, an attorney at the advocacy group GLBTQ Legal Advocates & Defenders, said in a statement that "today's decision affirms the essential work of New Hampshire public school teachers to ensure students develop the knowledge and critical thinking skills they need to be successful and contribute to their communities."

"We're grateful the court recognized that setting vague conditions on what educators can say about race, gender, gender identity, sexual orientation, and disability harms students with historically marginalized identities, including LGBTQ students," Erchull added. "Now, teachers can do the work of planning lessons and guiding student discussions without fear of losing their license if someone raises a vaguely defined banned topic in the classroom."