BLOG: NEA-New Hampshire Member Participation Key to Landmark Ruling Striking Down Unconstitutional ‘Banned Concepts’ Law

This week, a federal court ruled that New Hampshire’s “banned concepts” law is unconstitutional which restores the teaching of truth and the right to learn for all Granite Staters. This is the first decision in the country striking down a classroom censorship law that applies to K-12 public schools. 

Following the bill’s passage in 2021, NEA-New Hampshire 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. 

After passage of the ‘banned concepts law’ in 2021, NEA-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. The law actively discouraged public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom and had a chilling effect on classroom instruction. That is why NEA-New Hampshire joined the broad coalition of educators and advocacy groups that brought the challenge to the law.

To be clear, this victory would not have been possible without the powerful testimony of NEA-New Hampshire members who shared how the law stifled their ability to provide a true and honest education. On behalf of educators and students across the state, we extend our sincere gratitude to: Patrick Keefe (Litchfield Education Association); Jennifer Given (formerly of Hollis Brookline Education Association); Alison O’Brien (Windham Education Association); and Sean O’Mara (Keene Education Association). 

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.

In its order, the court stated 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.”

“I’m relieved the courts have agreed that teachers should not be punished for good teaching,” said NEA-New Hampshire member Alison O’Brien, a social studies teacher at Windham High School.

O’Brien joined the lawsuit after a NH Department of Education investigation was opened in response to a parent’s complaint about her use of two music videos as part of a unit on the Harlem Renaissance.

In his decision, Judge Paul Barbadoro wrote: “Despite the fact that the articles offer minimal interpretive guidance, Department of Education officials have referred educators to them as a reference point…Department of Education Investigator Richard Farrell recommended that Windham’s administrators consult Edelblut’s April 2022 opinion article to understand the context of the investigation against O’Brien, without otherwise explaining why O’Brien’s lesson warranted investigation. After witnessing her experience, O’Brien’s colleagues grew anxious about facing similar actions.”

After the ruling, NEA-New Hampshire President Megan Tuttle remarked, “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.”

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