Lawsuit accuses state of censuring teachers, involving schools in partisan “culture wars”

  • Republican Frank Edelblut at a Concord Monitor editorial board on Tuesday, August 16, 2016, in Concord, N.H. Photo by Geoff Forester

Concord Monitor
Published: 12/16/2021 11:24:54 AM
Modified: 12/16/2021 11:24:20 AM

Three New Hampshire public school teachers, two parents and the state’s second-largest teacher’s union are suing the state over its “freedom from discrimination in education” law, which they say restricts how public school educators can teach about racism, sexism and discrimination.

The lawsuit was filed Monday by American Federation of Teachers New Hampshire against Education Commissioner Frank Edelblut, N.H. Human Rights Commission Chair Christian Kim and Attorney General John Formella, and argues the law infringes on freedom of speech and involves schools in partisan “culture wars,” while preventing students from receiving a “full and robust” education.

“Today, we are taking a stand against the law that brings political partisanship into the classroom and chokes off learning in a way that is reminiscent of book burning,” AFT-NH president Deb Howes said at a press conference Monday. “This law signals that New Hampshire believes it’s okay to censor education, thought and freedom and doesn’t believe teachers should be able to teach honest and accurate history.”

New Hampshire’s “Right to Freedom from Discrimination in Public Workplaces and Education Law,” often referred to as the “divisive concepts” law, was modified and ultimately passed in June through a rider bill to the state budget, signed by Gov. Chris Sununu. The law prohibits teaching that people are inherently superior, oppressive or racist because of “immutable characteristics” such as race, gender, sexual orientation. Critics of the law say it restricts public school teachers’ ability to discuss with students the system impact of historical racism, sexism and other discrimination.

Empowered by the new law, Edelblut created a web page last month that links to a form where parents can report any teacher for an alleged violation. Teachers found to have been in violation may be stripped of their teaching credentials. The conservative group Moms for Liberty New Hampshire issued a Tweet in November, offering a $500 bounty to the first person who “catches” a public school teacher violating the new law.

“A lot is crafted with language that was designed to make it look benign, but in reality, it puts public school teachers in an impossible position,” said Randi Weingarten, national AFT president. “Teachers want to teach and help their kids learn. And that is in fact what is required under state education law. They’re facing this Hobson’s choice to teach the curriculum or be publicly ‘flogged’ and potentially fired.”

AFT-NH’s lawsuit claims the state law restricts teachers’ freedom of speech under the First Amendment of the U.S. Constitution, and also that it violates the Due Process Clause of the Fourteenth Amendment due to its vagueness, as it doesn’t include a precise explanation of what is and isn’t prohibited in the classroom. It also claims the law violates New Hampshire’s state Constitution, which guarantees an “adequate education” for all students.

“The boundaries of this law are ridiculously unclear. It makes it nearly impossible for teachers to know what they’re allowed to teach about historic and societal concepts such as racism, sexism, gender identity or discrimination,” Howes said. “And the state is now holding over teachers’ heads the possibility of losing their teaching credentials if they are accused of violating the law.”

The teacher plaintiffs in the lawsuit are Ryan Richman and John Dube, both history teachers at Timberlane Regional High School, and Jocelyn Merrill, an English teacher at Nashua High School North.

Both Richman and Merrill say they have experienced restrictions on their ability to teach due to the law, according to court documents. Richman, who often asks his students to find a news article about a current event and bring it to class to discuss its connections with the past, is struggling with how to proceed when the examples they bring in – the Rohingya genocide, the Uyghur genocide or the Black Lives Matter movement – are inherently tied to oppression. Merrill has limited her classroom discussion of race to specific passages in books and has been avoiding any discussion of the systemic impact of racism.

Dube has been the target of online harassment and threats after his name was published online by a local conservative organization for signing an online petition promising to teach “honest” history in light of the new law. The harassment increased to the point where local police and the FBI got involved, and Dube installed personal security equipment at his home, according to court documents.

The two parent plaintiffs, Kimberly Elliot of Merrimack and Meghan Durden of Nashua, are both concerned their children will not receive a “full and robust” history and civics education under the law due to restrictions like these.

“The ‘culture wars’ have no place in New Hampshire’s classrooms,” the lawsuit reads. “Our public school teachers and support staff are dedicated public servants who have stepped up and devoted themselves beyond measure during the pandemic to continue to teach our children. Yet, they are being politically targeted and threatened with public shaming and undeserved disciplinary proceedings (not to mention the cost of defending themselves) for doing their jobs in accordance with the curriculum formally adopted by the state.”

On Monday, Sununu disputed the lawsuit’s characterization of the law.

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

Senate Majority Leader Jeb Bradley, a Wolfeboro Republican, who introduced the modified version of the “divisive concepts” bill in May that that later passed, called the lawsuit “disappointing.”

“Clearly any instruction that teaches students they are inferior or superior due to these characteristics is discrimination and it’s terribly disappointing that this lawsuit has even been filed,” Bradley said in a statement Monday.

National Education Association New Hampshire, the state’s largest teacher’s union, came out in support of AFT-NH’s lawsuit on Monday.

“We agree with our colleagues at AFT that the divisive concepts law is flawed, and we support their efforts to advocate for students in court,” said NEA-NH President Megan Tuttle. “Our children deserve the freedom to develop the knowledge and skills they need to reckon with our past, shape a better future, and pursue their dreams. Laws like this one take away that freedom.”

A new “teacher loyalty” bill introduced this legislative session would take classroom restrictions even further by banning public school teachers from promoting any theory that depicts U.S. history or its founding in a negative light, including the idea that the country was founded on racism.


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