Federal Court Rules “Banned Concepts” Lawsuit Can Continue

Federal judge allows case to proceed, saying “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”

United States District Judge Paul J. Barbadoro ruled on the State of New Hampshire’s request to dismiss the lawsuit challenging the constitutionality of several recent amendments to New Hampshire’s education and antidiscrimination laws that restrict what public school teachers can say to their students about how to understand, prevent, and redress discrimination in our society. While he did rule that claims that the law violated First Amendment rights could be dismissed, he agreed with NEA-NH’s position that the law could be too vague to enforce and that the suit could continue.

He wrote, “The prospect of ‘the chilling of constitutionally protected speech’ has led courts to ‘apply a heightened standard’ when reviewing statutes that impose restrictions on speech. As a result, speech restrictions ‘require a greater degree of specificity.’ The need for clarity is likewise paramount when a statutory provision authorizes severe consequences for a violator.”

In his ruling, he stated, “Although the new law identifies certain core concepts that may not be taught, they do not give either teachers or enforcers the guidance they need to find the line between what the law prohibits and what it permits.”

His ruling also stated what we have been saying since the law was first proposed: “the principal problem with the law is it does not give teachers fair notice of what they can and cannot teach. Teachers can be sanctioned for speech that they do not intend to advocate a banned concept. They can be sanctioned even for speech that is later deemed to violate the amendments only by implication. Because teachers can lose their jobs and teaching credentials if they cross the line into prohibited speech, they should not be left to guess about where that line will be drawn.”

He also highlighted the unwinnable position NH teachers are being placed in now that the new law has been enacted. “These problems are compounded because, as plaintiffs (teachers) point out, teachers in New Hampshire have an affirmative duty to teach topics that potentially implicate several of the banned concepts. For example, state law explicitly mandates teaching about the evolution of ‘intolerance, bigotry, antisemitism, and national, ethnic, racial, or religious hatred and discrimination,’ as well as ‘how to prevent the evolution of such practices.’”

The State’s motion to dismiss our lawsuit on our claims it is too vague was denied and the process can now continue.

[From ACLU-NH Press Release]

CONCORD, N.H. – The U.S. District Court today released its latest decision in the lawsuit challenging New Hampshire’s “banned concepts” law, allowing the challenge against the law to proceed. In its decision, the court said, “In sum, the amendments’ vague terminology, their lack of a scienter [culpable state of mind] 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.” 

This decision is part of a growing trend and is the fourth case reaching a similar finding. Laws banning similar concepts in other contexts in Florida were recently preliminarily enjoined on vagueness grounds in two cases, here and here. This follows another federal judge deeming impermissibly vague former President Trump’s “divisive concepts” Executive Order.

Christina Kim Philibotte and Andres Mejia, New Hampshire school administrators who are the two of the plaintiffs in the case, said, “We have dedicated our careers to creating an education community where every student—including Black, Brown, and students of color, students from the LGBTQAI+ community, students with disabilities, and students from other historically marginalized identities—feel like they belong. This law chills the very type of diversity, equity, and inclusion work that is absolutely necessary to ensure that each student is seen, heard, and connected, especially as New Hampshire becomes more diverse. This law is causing books and materials to be removed that are essential to creating a sense of belonging for students. We are relieved that the Court recognized that this should proceed, and we will continue to challenge this law.”

The classroom censorship law, passed and enacted in 2021, discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom. 

The 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.

“This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve, and we are glad the court agreed that this challenge should move forward,” said Gilles Bissonnette, Legal Director of the ACLU of New Hampshire. “New Hampshire’s classroom censorship law is an attack on educators who are simply doing their job, and through vagueness and fear it erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people, and people with disabilities. We look forward to continuing the fight to overturn this unconstitutional law in court.”

In this consolidated case, this legal challenge was brought by AFT-New Hampshire and by various teachers and parents, two New Hampshire school administrators–Christina Kim Philibotte and Andres Mejia–who both specialize in diversity, equity, and inclusion, and the National Education Association – New Hampshire (NEA-NH). 

They are represented by lawyers from a broad coalition of organizations and law firms, including Strook & Strook & Lavan LLP, the ACLU of New Hampshire, the ACLU, the NEA-NH and National Education Association, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders, Nixon Peabody LLP, Preti Flaherty Beliveau & Pachios LLP, and Shaheen & Gordon, P.A. 

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. New Hampshire is one of three states that have had similar laws challenged in court. 

“Our public schools are a critical civic institution, and we entrust New Hampshire’s dedicated teachers and administrators to help students understand the world around them and prepare to take their place as adults in our increasingly diverse state and country,” said Chris Erchull, Attorney at GLBTQ Legal Advocates & Defenders. “In the time this law has been in effect, we have seen the culture of fear it has created in classrooms across the state by placing vague conditions on what educators can discuss in the classroom about race, gender, gender identity, sexual orientation, and disability. We look forward to continuing the work to overturn this law that is making our schools less safe for students and denying them the opportunity to fully learn about American history and understand and appreciate human differences.”

“The truth matters,” said Megan Tuttle, NEA-New Hampshire president. “Purposefully vague laws like this one are aimed directly at stopping educators from teaching the truth. Our students deserve an education that will help them better understand the lives, cultures, and experiences of different people. But when the politicians who are writing the laws don’t value the experiences of people who are different than them, we get laws like this one. It is clear that parents and teachers want to give kids the best education they can without politicians limiting what history they can learn or what books they can read.”

The decision can be found here: https://www.aclu-nh.org/sites/default/files/mtddecision.pdf 

More information and case documents are here: https://www.aclu-nh.org/en/cases/nea-nh-et-al-v-nh-commissioner-education-et-al 

This press release can be found here: https://www.aclu-nh.org/en/press-releases/federal-court-rules-banned-concepts-lawsuit-can-continue