New Hampshire Educators Pleased Federal Court Rules to Allow Lawsuit Against State’s ‘Divisive Concepts’ Law to Proceed

CONCORD, N.H.—The American Federation of Teachers and AFT-New Hampshire reacted to news today that a federal court will allow AFT-New Hampshire’s lawsuit against the state’s so-called divisive concepts law to proceed, with the judge writing that teachers should not be in a position where they must instruct students on certain concepts but face losing their jobs.

The controversial law, passed in 2021, is called the “Right to Freedom from Discrimination in Public Workplaces and Education.” AFT-NH contends it violates teachers’ free speech rights when teaching as well as students’ First Amendment rights not to have censored instruction block their right to learn.

The lawsuit went on to argue that the divisive concepts statute is unconstitutionally vague and contradicts the U.S. Constitution as well as a state law mandating that public school curriculum include the teaching of accurate, honest history and social studies.

AFT-NH’s case against the law has been consolidated with a similar one brought by the American Civil Liberties Union of New Hampshire. It was filed with the U.S. District Court for the District of New Hampshire.

U.S. District Judge Paul Barbadoro used AFT-NH’s actual wording in its suit to agree that the law is flawed and the lawsuit should proceed.

Under the law, Barbadoro wrote that “teachers could, in plaintiff’s words, be left with ‘an impermissible Hobson’s choice’: shirking their responsibilities under [state law] or teaching what [the law] requires and potentially violating the prohibition against teaching a banned concept.”

“As teachers, we must be able to present instruction that is allowed under the U.S. and state constitutions and not be intimidated to teach honestly about history and current events,” said AFT-New Hampshire President Deb Howes. “This law is so vague that teachers don’t have a clue about what they can safely teach; it must be struck down. Teachers are sick and tired of the insults and attacks coming from Education Commissioner Frank Edelblut and his acolytes, who are determined to undermine and politicize our kids’ education.” She called the court’s decision to allow the suit to proceed “a victory for New Hampshire’s students and teachers.” She applauded the judge’s statement that students have a First Amendment right to an honest education.
 

American Federation of Teachers President Randi Weingarten, a former civics teacher, said the suit was brought because the ambiguous law attempts to stop teachers from teaching honest history yet leaves them with no understanding of what is allowed.

“We are grateful the court rejected the defendant’s attempts to justify this impermissibly vague law, which hurts students and teachers. As we pleaded in our papers, the law makes it impossible for educators to do our jobs,” Weingarten said.

She noted that Barbadoro wrote that teachers can be sanctioned for speech for which they had no intent to advocate a banned concept.

“This law is intended to be used to stop educators from teaching honest history, and in doing so, it’s punishing both educators and kids. Instead of putting New Hampshire teachers’ careers at risk and denying students an accurate and honest education, N.H. lawmakers and policymakers should be focusing on giving students all the resources and supports they need, especially as they try to recover from a very difficult past couple of years,” Weingarten said.

One of the original plaintiffs in the case—John Dube, a recently retired high school history teacher in New Hampshire’s Timberlane Regional School District—criticized the law, saying he considers it Orwellian. “If you can control the past, you can control the future,” Dube said. “I didn’t teach critical race theory. I taught history and the truth as I have studied it for over 40 years. The history of the United States is not a perfect one, but we are attempting to get there. We must be able to teach the truth.”