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  • Ella Donahue

TGIF (Thank God It Failed): NH “Divisive Concepts” Bill is Unconstitutional

Courtesy of Malate269

This bill came in a wave of similar censorship bills modeled after the September 22, 2020 Trump Executive Order on Combating Race and Sex Stereotyping, which essentially argued that diversity, equity, and inclusion initiatives were fostering harmful stereotypes, that some people, simply on account of their race or sex, are oppressors” and that training “perpetuates racial stereotypes… and can use subtle coercive pressure to ensure conformity of viewpoint.  In fact, since 2021, 18 states have passed laws similar.

The bill, dubbed “divisive concepts,” was a product of Republican majority within the State House in 2021. Despite the bill being vetoed within the House, due to the Republican majority, they were able to put it in the budget. This forced Governor Chris Sununu (R-NH) to decide between vetoing an entire budget or accepting the divisive concepts provisions that came with it. The Governor chose the latter. 

The coalition that was formed of educators, advocacy groups, and law firms swiftly filed a lawsuit on December 20, 2021 to challenge the law. According to the plaintiffs, the language of the bill allows the unconstitutional prohibition of open and complete dialogue about the perspectives of historically marginalized groups. Challengers argued that the law is a clear violation of the Fourteenth Amendment because 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. 

In response, the state argues that the statute’s language and accompanying written guidance from the Attorney General provides sufficient directions in appropriately following the law. 

Ultimately, on May 28, 2024, the presiding judge found that the law was unconstitutionally vague because it doesn’t provide guidance to educators about content and invites arbitrary and discriminatory enforcement. The bill has no minimum guidelines to govern the enforcement of itself so that officials can pursue their personal predilections when applying the law. In fact, because teachers were at risk of losing their license if found guilty of violating the law, the teachers are owed due process. This meaning that teachers have the right to know what exactly could lead to their license being revoked - so the vague laws that allow arbitrary enforcement are a violation of their due process rights as outlined in the constitution.

Yet, there are still similar bills throughout the country. PEN America tracks what they call “educational gag orders” through an index. Alabama has a pending bill that “prohibits public K-12 schools from offering any instruction related to sexual orientation or gender identity” sponsored by Representative Mack Butler (R-AL), with Georgia, Hawaii, Louisiana, and more following suit. Idaho has a bill that prohibits both public and private K-12 schools from making available or “promoting” any depiction of homosexual conduct. 

Further, state censorship laws, even when found unconstitutional or not passed, lead to the self-censorship of teachers. The possibility of being targeted by a segment of their population of students or students’ parents has led them to curb discussion about certain political and social topics. Because the laws are so vague, most educators have no idea what is and is not allowed within the confines of their classrooms. 

The spillover effect from the 2020 executive order and resulting state censorship laws occurs in multiple ways. Some local school boards have adopted restrictive policies to create similar conditions of statewide restrictions. 


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