On December 22, 2021, a diverse group of educators, advocacy groups, and law firms filed a federal lawsuit challenging a New Hampshire classroom censorship law, contained within state budget bill HB2, which discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom.
New Hampshire is one of many states across the country that passed similar laws in 2021 aimed at censoring discussions around race and gender in the classroom. This is the third federal lawsuit in the country to facially challenge one of these bans, including the ACLU’s recently filed lawsuit challenging Oklahoma’s classroom censorship law. The New Hampshire lawsuit argues that HB2’s vague language unconstitutionally chills educators’ voices under the 14th Amendment, and prevents students from having an open and complete dialogue about the perspectives of historically marginalized communities, as well as on topics concerning race, gender, sexual orientation, gender identity, and disability.
The lawsuit was brought by two New Hampshire school administrators who both specialize in diversity, equity, and inclusion. The lawsuit was also brought by the National Education Association – New Hampshire (NEA-NH), which is comprised of more than 17,000 member educators in New Hampshire and represents the majority of all public school employees in the state.
They are represented by lawyers from a broad coalition of organizations and law firms, including the NEA-NH and National Education Association, the ACLU, the ACLU of New Hampshire, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders, Nixon Peabody LLP, Preti Flaherty Beliveau & Pachios LLP, and Shaheen & Gordon, P.A.
According to the lawsuit, the law is so unclear and vague that it fails to provide necessary guidance to educators about what they can and cannot include in their courses, and that it invites arbitrary and discriminatory enforcement—up to and including the loss of teaching licenses.
Following the bill’s passage, the NEA-NH began to hear from teachers that they were confused about what they could and could not teach, and that they were scared of the repercussions for guessing wrong. On multiple occasions, NEA-NH and other groups sent letters to the state asking for specific clarification. These letters went unanswered and unacknowledged.
The lawsuit asks the court to declare the Banned Concepts Act unconstitutional under the 14th Amendment, and issue an order barring its enforcement.
The State has moved to dismiss this lawsuit, and we filed our objection on May 20, 2022.
On January 12, 2023, allowed the case to proceed. The Court stated: "In sum, the amendments’ vague terminology, their lack of a scienter [culpabale mental state] requirement, and the possibility that teachers could be found liable for teaching a banned concept by implication, leave both teachers and enforcers to guess at what speech the amendments prohibit. Given the severe consequences that teachers face if they are found to have taught or advocated a banned concept, plaintiffs have pleaded a plausible claim that the amendments are unconstitutionally vague."
On August 14, 2023, Plaintiffs filed their memorandum of law and statement of facts in the case.
On May 28, 2024, the Court declared that the law was unconstitutional. The Court stated in its order that the “prohibitions against teaching banned concepts are unconstitutionally vague,” and that the law 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.” The Court concluded further, “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.”