New Hampshire classroom censorship law is unconstitutional, federal judge rules

A federal court ruled Tuesday that New Hampshire’s classroom censorship law is unconstitutional.

The law, House Bill 2, passed in 2021, “actively discouraged public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom,” according to the American Civil Liberties Union’s New Hampshire affiliate, which was among the organizations representing the teachers and advocacy groups challenging the statute. It is the first ruling in the nation striking down a classroom censorship law affecting K-12 public schools.

HB 2 amended the state’s education and nondiscrimination laws to stipulate that no one could teach that any group of people was superior due to their race, sex, sexual orientation, gender identity, or certain other characteristics, or that any group was inherently racist, sexist, or oppressive, whether consciously or unconsciously.

Like other classroom censorship laws passed in states around the nation, it seems to encourage equal treatment of all, but it’s part of a movement to quash any teaching that racism, sexism, homophobia, or other forms of bigotry exist. They are sometimes characterized as "don't say gay" laws. An earlier New Hampshire bill, which did not pass, was based on Donald Trump’s executive order banning the use of federal funds in educational programs to promote so-called divisive concepts relating to race and sex. Joe Biden rescinded that order when he became president, but the primary components of the earlier New Hampshire legislation were wrapped into HB 2.

Teachers and educational advocates argued that the changes made by HB 2 were “unconstitutionally vague,” and U.S. District Court Judge Paul J. Barbadoro agreed. “The Amendments [contained in HB 2] are 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,” he wrote. “Thus, the Amendments violate the Fourteenth Amendment to the U.S. Constitution.”

For instance, he noted, one teacher avoided certain topics both in the classroom and in his role as an adviser to his high school’s Model United Nations project “out of fear that he might violate the Amendments by commenting on the sort of ‘controversial topics’ that frequently arise at Model UN competitions.” Another teacher said he shied away from discussions of the legacy of slavery when teaching about Toni Morrison’s novel Beloved.

“These examples are only illustrative of the wide-ranging difficulties that teachers face in attempting to conform their behavior to the vague strictures of the Amendments,” Barbadoro wrote.

Those who sued over the law welcomed Barbadoro’s decision. “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,” Christina Kim Philibotte and Andres Mejia, two New Hampshire school administrators who are plaintiffs in the case, said in an ACLU press release. “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’s ruling today is a victory for academic freedom and an inclusive education for all New Hampshire students,” said Gilles Bissonnette, legal director for 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.”

“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,” added Chris Erchull, an attorney at GLBTQ Legal Advocates and Defenders. “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.”

The case consolidated two lawsuits, one filed by Mejia, Philibotte, and the National Education Association’s New Hampshire affiliate, and one filed by the American Federation of Teachers. The New Hampshire Department of Education was named as defendant.

The plaintiffs were represented by lawyers from the ACLU of New Hampshire and the national ACLU, GLBTQ Legal Advocates and Defenders, the NEA, the Disability Rights Center, and private law firms.

The state could appeal the decision, but it’s unknown if it will.