Vague law actively discouraged public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom
CONCORD, N.H. - A federal court ruled today that New Hampshire’s classroom censorship law is unconstitutional. A broad coalition of educators and advocacy groups brought the challenge to the law, which actively discouraged public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom. This is the first decision in the country striking down a classroom censorship law that applies to K through 12 public schools.
“Today’s court victory means that educators across New Hampshire can nurture an equitable and inclusive school environment where all students are seen and heard,” said Christina Kim Philibotte and Andres Mejia, two New Hampshire school administrators who are plaintiffs in the case. “It is critically important that students see themselves in the books they read and in the classroom discussions they have to ensure that they feel cared for and valued. We understand that the legislature is still pushing dangerous bills that tell students of color, students from the LGBTQ+ community, and students with historically marginalized identities that they do not belong in our schools and history. This decision pushes back on these legislative efforts by providing relief for teachers who can now confidently do their jobs and teach in ways that validate their students’ lived experiences. We are grateful to the Court for striking down this unconstitutional classroom censorship law in a decision that has moved the pendulum towards justice for children across the state.
The court found that the law violated the Fourteenth Amendment, concluding the law was so unclear and vague that it failed to provide necessary guidance to educators about what they could and could not include in their courses and that it invited arbitrary and discriminatory enforcement—up to and including the loss of teaching licenses.
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.”
“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.”
The Court also explained in its order that, “because the Amendments fail to establish ‘minimal guidelines to govern [their] enforcement,’ officials are free to ‘pursue their personal predilections’ when applying the law. Indeed, the record demonstrates that those charged with enforcing the law have relied on Commissioner Edelblut’s personal opinions on what is appropriate instruction, as expressed in his op-ed articles, to guide their efforts.”
Following the bill’s passage in 2021, NEA-New Hampshire (the state affiliate of the National Education Association) and AFT-New Hampshire heard 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.
Megan Tuttle, NEA-NH president, said, “As a social studies teacher, I know how important it is for students to have truthful and accurate information that helps them better understand the lives, cultures, and experiences of different people. It builds critical thinking skills that are truly foundational to their success in all facets of life. But New Hampshire’s ‘banned concepts’ law stifled New Hampshire teachers’ efforts to provide a true and honest education. Students, families, and educators should rejoice over this court ruling which restores the teaching of truth and the right to learn for all Granite State students.”
Jennifer Eber, Litigation Director of Disability Rights Center – NH, said, “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.”
Chris Erchull, Attorney at GLBTQ Legal Advocates & Defenders, said, “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. 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. We’re better as a state and community when we can have hard conversations and learn from them, and that’s what this decision allows.”
Emerson Sykes, Senior Staff Attorney at the American Civil Liberties Union, said, “This is an important win for educators and students in New Hampshire and sends a clear message across the country that bans on inclusive education are unconstitutional and will not stand.”
The Plaintiffs are represented by lawyers from a broad coalition of organizations and law firms, including the ACLU of New Hampshire, Nixon Peabody LLP, the ACLU, the NEA-NH and National Education Association, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders, Preti Flaherty Beliveau & Pachios LLP, Shaheen & Gordon, P.A., and Patterson Belknap Webb & Tyler LLP.
The case consolidated two lawsuits, one filed by educators Andres Mejia and Christina Kim Philibotte and NEA-NH, and one filed by the American Federation of Teachers.