ACLU-NH, NEA file second lawsuit over 'divisive concept' law

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  • Chris Sununu
    82nd Governor of New Hampshire

Dec. 20—CONCORD — The state's largest teachers union joined with the Civil Liberties Union of New Hampshire (ACLU-NH), disability and LGBTQ legal advocates in launching a second federal lawsuit against the so-called "divisive concepts" law.

Christina Kim Philibotte, the chief equity officer for the Manchester School District, and Andres Mejia, the Exeter Region Cooperative School District director of diversity, equity, inclusion and justice, agreed to serve as lead parties in this suit which charges the new law would chill discussion in schools about race, gender, disability and sexual preference.

"We have dedicated our careers to creating an education community where every student — including Black and Brown students, students of color, students from the LGBTQAI+ community, students with disabilities, and students from other historically marginalized identities — feel like they belong," Philibotte and Mejia said in a joint statement.

The Republican-led Legislature attached what it called a Right to Freedom from Discrimination and Public Workplaces and Education to the two-year state budget trailer bill that Gov. Chris Sununu signed last June.

It bans teaching in elementary and high schools about which any individual, by virtue of his or her race and sex, was "inherently racist" or the teaching that one race or sex was "inherently superior" to another.

Supporters maintain the aim is to prevent the teaching of discrimination. They also said it doesn't ban discussing "as part of a larger course of academic instruction, the historical existence of ideas and subjects" such as racism in public schools.

But Gilles Bissonnette, legal director for ACLU-NH, said after only four months of the law being in place, teachers have been fearful of free-flowing discussions in class that could lead to the loss of their teaching license.

"This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve, and from having important conversations on race, gender, disability, sexual orientation, and gender identity in the classroom," Bissonnette said.

Suit based on due process protections

The aim of the 65-page lawsuit is to have the measure struck down because it violates the Due Process clause of the U.S. Constitution because it is too vague for teachers to be sure they were in compliance.

Other parties to this latest suit include the Disabilities Rights Center of New Hampshire (DRC-N.H.), GLBTQ Legal Advocates & Defenders and lawyers with three prominent firms including one that used to employ Supreme Court Chief Justice and ex-Attorney General Gordon McDonald.

Earlier in December, the state chapter of the American Federation of Teachers (AFT) brought a similar lawsuit in U.S. District Court in Concord.

The AFT complaint also added claims that the law violated the First Amendment and was contrary to a state law regarding the teaching of discrimination in schools.

In a recent statement, Sununu strongly defended the law he signed.

"Nothing in this language prevents schools from teaching any aspect of American history, such as teaching about racism, sexism, or slavery — it simply ensures that children will not be discriminated against on the basis of race, gender, sexual identity, or religion," Sununu said.

Last spring, Sununu threatened to veto an initial version of this "divisive concepts" issue after concluding that, as written, it could have discouraged freedom of speech in schools.

In response, Republican legislative leaders rewrote the measure to his liking which included erasing all references to the phrase "divisive concepts."

The changes also exempted from this ban sensitivity training in the workplace and all teaching of students in the two- and four-year college systems.

Officials with the NEA and ACLU weren't aware of any New Hampshire educator who had been disciplined over teaching practices since the law passed.

This lawsuit contends teachers have already begun "self-censoring" such as a Cheshire County middle school teacher who decided not to use the book "Stamped (For Kids): Racism, Antiracism, and You."

Bissonnette said a complaint about the same book was made to the Department of Education after it was taught by social studies teachers at a middle school in Hillsborough County.

"Every day this goes on is a day where children in the state of New Hampshire are being harmed," Bissonnette said.

NEA President Megan Tuttle said this suit should not be delayed until a teacher's career or reputation is tarnished by it.

After a socially-conservative group offered a $500 bounty to the first parent who made a complaint to a state-sponsored service, Sununu condemned the incident as "inappropriate."

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