A new state law that limits how teachers can discuss slavery and unconscious bias, among other things, is so vague that it amounts to broad censorship of state educators, the state’s two teachers unions argue.
The Attorney General’s Office wants the court to dismiss two lawsuits filed against the state of New Hampshire by local educators over the state’s “Freedom from Discrimination in Public Workplaces and Education” law, which regulates discussion of discrimination in the classroom.
The unions are pushing back, saying the law puts a chill on what teachers can discuss in the classroom because no state officials can explain what specifically it bans.
“This law creates an environment where teachers are afraid to teach certain topics to students about race, gender, sexual orientation, gender identity, and other identities,” diversity, equity and inclusion administrators Andres Mejia and Tina Kim Philibotte and NEA-NH said in a statement May 23. “All children suffer from this censorship. Students from historically marginalized backgrounds are especially robbed of the right to see themselves and their lived experiences reflected in their education.”
The lawsuits, which were filed in December, hinge on the issue of “vagueness,” and whether its language can be plainly understood by the teachers who must follow it.
National Education Association New Hampshire and the American Federation of Teachers New Hampshire, the state’s two biggest teachers unions, argue that the law doesn’t specify what information, books or other materials educators can and cannot include in their courses. But New Hampshire’s attorney general, education commissioner and human rights commissioner maintain that the wording of the law and the accompanying FAQ sheet, make it sufficiently clear.
“The language of the provisions, particularly when coupled with guidance issued by the Department of Education, the Commission for Human Rights, and the Department of Justice, demonstrates that the new anti-discrimination provisions provide a discernible, objective standard for what conduct is proscribed,” the state argued in a memorandum asking the case be dismissed. “The robust process available under the provisions further protects against arbitrary and discriminatory enforcement.”
John Greabe, professor of law at the UNH Franklin Pierce School of Law, says the vagueness doctrine is typically used in arguments claiming a law is so unclear it could fail to give someone fair notice that they’re violating a law, thereby impacting their right to due process under the Fourteenth Amendment.
“You’d have to convince a court that a reasonable person would not necessarily understand what the limits of the law are,” Greabe said.
Vagueness arguments have notably been used in cases of loitering laws, like 1971’s Coates v. City of Cincinnati when the U.S. Supreme Court struck down a Cincinnati ordinance that restricted people from gathering on the street in “a manner annoying to persons passing by.” Here in New Hampshire, the ongoing caseFrese v. MacDonald hinges on whether the state’s criminal defamation statute is vague and overly broad, after an Exeter man was arrested in 2018 for posting a comment online about his town’s former police chief.
“They often arise in the context of laws that could have the effect of regulating speech,” Greabe said. “The court, historically, has been particularly concerned about vague laws in the context of speech regulation, because the court doesn’t want constitutionally-protected speech to be chilled.”
Greabe said courts also tend to be concerned with vague laws if there is a risk of “arbitrary enforcement,” law enforcement officials differing in how and when they choose to enforce the law.
“You may have one law enforcement official believing that certain conduct is outlawed and aggressively taking action under the statute where another law enforcement official says ‘no, I don’t think the statute reaches that,’ Greabe said.
The vagueness claim made by AFT-NH and NEA-NH includes both the arguments that a reasonable person wouldn’t understand the state’s “Freedom from Discrimination in Education” law and that it could lead to arbitrary enforcement of teachers by the state.
AFT-NH, three teachers and two parents first filed their suit in December, arguing the “Freedom from Discrimination” law is too vague under the Fourteenth Amendment, that the law violates freedom of speech under the First Amendment, and that it violates New Hampshire’s state Constitution, which guarantees an “adequate education” for all students. One week later, NEA-NH filed a similar suit arguing that the law is unconstitutionally vague.
The two cases were consolidated into one case in March. The parties now file joint briefs about their common vagueness argument, while AFT-NH continues to submit separate briefs regarding their other two arguments.
On March 25, the state filed a motion to dismiss the educators’ lawsuits. The teachers’ unions responded with a brief May 20, objecting to the state’s motion to dismiss.
New Hampshire’s “Right to Freedom from Discrimination in Public Workplaces and Education Law,” which critics have dubbed the “banned concepts law,” was modified and ultimately passed in June 2021 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, the Deptartment of Education created a web page in November that links to a form where parents can report teachers for alleged violations. Teachers found to have been in violation may be stripped of their teaching credentials.
“The vague provisions of the statute leave plaintiffs with an unconstitutional Hobson’s choice,” NEA-NH and AFT-NH argue in their most recent joint brief. “Either avoid important topics in classroom discussions and instructions related to race, gender, gender identity, sexual orientation, and disability — including topics like systemic racism and even current events, such as the oppression of the Ukrainian people — or risk losing their licenses and liveli hoods fo r violating the statute.”