‘Divisive ideas’ ban is regulation in NH. How will it have an effect on colleges?

CONCORD — New Hampshire’s Republican lawmakers have inserted, and the governor has signed, a state budget that prohibits the teaching of so-called “divisive concepts” related to race and gender by public schools, state agencies and contractors. But what exactly does that mean?

Though the term divisive concepts no longer appears in the language attached to the two-year $13.5 billion state budget, many of its themes are repackaged into several lines of legislation beginning on page 154 of the 220-page bill, according to civil rights groups and educators. 

“One of the central problems with this bill is its ambiguity in what constitutes a banned so-called ‘divisive’ concept,’” said Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire. “One part of the bill aims to permit ‘workplace sensitivity training’ while other portions of the bill ban speech aimed at addressing ‘unconscious racism’ in the workplace. Similarly, one part of the bill purports to protect academic freedom while another portion bans the teaching on so-called divisive concepts. Frankly, the bill is indecipherable and internally contradictory.”

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The biggest area of concern for opponents of the budget language are its potential impacts on education. The law allows for teachers found in violation to be brought before the state Board of Education for disciplinary proceedings and potential loss of their educators’ credentials. Guidance on how the provision of the law will be enforced is still being formulated at the state department of education, as well as in the state attorney general’s office, according to numerous sources interviewed for this story.

“(The budget) comes across draconian because if a teacher violates it, they can be hauled in front of the state board and lose their license over a law that is confusing to say the least,” said Oyster River Superintendent James Morse, a former member of Republican Gov. Chris Sununu’s Advisory Council on Diversity and Inclusion. Morse was among 10 members who recently resigned from the council in protest over the “divisive concepts.” 

“It’s a fundamental affront to academic freedom in teaching in terms of teachers making decisions on how they apply the curriculum set by the school board,” he continued.

Morse said the budget language is “an intrusion into local education matters,” where school boards set their districts’ curriculums, such as teaching American history and including “racist elements” that plague the nation’s past and present. 

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Megan Tuttle, president of National Education Association of New Hampshire, said the budget allows potential bad-faith complaints to the Department of Education or attorney general that could put teachers’ “livelihoods at risk.” She did not rule out the possibility of mounting a legal challenge on behalf of member teachers.

“What educators are trying to do is be honest in education, but because our profession has been politicized to this point, it’s concerning to say the least,” Tuttle said. “History always has different views, but the historical facts don’t change. (Teaching history) now runs the risk of losing the critical thinking piece if we are unable to teach history in its truest form.”

Bissonnette, of ACLU-NH, said educators and other public employees will be inclined to “self-censor” and not engage on topics of race, “out of fear of being the subject of a complaint.”

“This is the real danger of the bill and it may very well be the point of it – namely, to cause people to censor themselves in having important conversations on race,” Bissonnette said.

The governor’s view

Ben Vihstadt, spokesperson for Sununu, said the purpose of the language is to give parents greater ability to report cases of discrimination against their child to the state. He reiterated the term “divisive concepts” does not appear anywhere in the budget language. 

“The governor has always acknowledged that elements of racism exist in our communities,” Vihstadt said. “Nothing in this budget prevents schools from teaching any aspect of American history, such as teaching about racism, sexism, slavery, or implicit bias, as long as those discussions are done without prejudice or discrimination against any student.”

Republican state Sen. Jeb Bradley, the Senate majority leader, amended the original “divisive concepts” language contained in House Bill 544 to make it more palatable to the Senate and governor in the state budget. He pointed to the amended legislation’s specific language stating the provisions of the budget are, “not to be construed” as prohibiting academic discussion and exploration on historic and present issues of race and discrimination.

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“The legislation is crystal clear,” Bradley said. “People are trying to create an alternate narrative that this is censorship, that it tries to discourage conversations of past racism, current racism or prohibit anti-bias training. It does none of that, and anyone making those assertions either hasn’t read the legislation or is willfully misrepresenting it.”

The notion of divisive concepts was introduced by New Hampshire House Republicans in House Bill 544, which defined as divisive assertions that New Hampshire or the United States were “fundamentally racist or sexist” or that “by virtue of his or her race or sex, members of any race are inherently racist or are inherently inclined to oppress others, or that members of a sex are inherently sexist or inclined to oppress others.”

The bill, originally touted by House Republicans, prohibited the propagation by public employees, private businesses and current and prospective state contractors of these so-called divisive concepts, including, “an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously,” and “an individual, by virtue of his or her race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.”

House Bill 544 was tabled in the current legislative session. However, members of the the governor’s Council on Diversity and Inclusion, the Manchester chapter of the NAACP and the state teacher’s union believe many similar themes from HB 544 found their way into HB2, the state budget.

“The language of this bill is scary, it’s scary for educators, public employees; all of us who want to have, who need to have, deep conversations about the issues really affecting New Hampshire,” said state Rep. Jim Maggiore, D-North Hampton, who resigned in protest from the governor’s Council on Diversity and Inclusion. “We’re not just talking about race, ability, gender and sexual orientation; it’s everything that touches our lives. (With this budget), what we’ve said is we’re going to put a gag order, and put up a time limit on history, and only talk about a historical context that is undefined.”

Sununu previously said the diversity council was entering a “transition period.” He accused the ACLU of “trying to insert politics” into the council’s work. ACLU-NH Executive Director Devon Chaffee has said publicly the mass resignation was started by others. 

Previously:Sununu signs NH’s $13.5B budget with abortion restrictions, ban on ‘divisive concepts

Strengthening anti-discrimination law? What the language says

Sen. Bradley, R-Wolfeboro, introduced the amended language in the budget to the Senate. He said the new language serves only to enhance the state’s existing anti-discrimination law. The language in the budget now only applies to public employees, such as state workers, educators and law enforcement officers after numerous private businesses came out against HB 544.

Bradley points to language that states the budget, “declares that practices of discrimination against any New Hampshire inhabitants because of age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin are a matter of state concern, that discrimination based on these characteristics not only threatens the rights and proper privileges of New Hampshire inhabitants but menaces the institutions and foundation of a free democratic state.”

“The budget strengthens anti-discrimination laws, it’s a very different approach than HB 544,” Bradley said. “It prevents the kind of training and teaching, that by virtue of a person’s characteristics at birth, anyone is superior or inferior to another person, or one group of people is oppressive; that’s what the budget says.”

The state budget also contains language stating educators cannot teach, “That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others equally and/or without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin,” in part. It also allows public employees to opt out any trainings where these components would be purportedly taught without fear of being disciplined.

Opponents of the budget language say these components make the entire section of it contradictory. They believe the budget language was construed in a similar vein to legislation adopted in other states in that have recently passed provisions against teaching public school students so-called critical race theory, a law school theory examining how racism is institutionalized in American law.

Superintendent Morse of Oyster River rejected the notion that critical race theory is being taught in any of the state’s public school districts. He said he believes this language in the budget will be ultimately litigated in court.

Superintendent Morse:NH’s ‘divisive concepts’ bill designed to hide and deny racism and prejudice

“It’s a collegiate legal theory that has nothing to do with K through 12 education. We’ve been teaching diversity and equity in our curriculum for at least five years,” Morse said. “Do we want to live in a world where we don’t address the significant social issues of the day where there are all kinds of examples of racism, sexual bias and gender discrimination happening? How do we change that? We do it through education that gives students a foundation by teaching from our history.”

Vihstadt, Sununu’s spokesperson, said the governor would have preferred not to have language around so-called divisive concepts included in the budget, but did not want to veto the entire budget over its inclusion.

“The governor believes that it should have been taken up as a standalone bill, but he chose not to veto an entire state budget and risk shutting down government because this was the route the legislature chose to take,” Vihastadt said. “The governor has always discouraged non-budgetary items from being included in the budget. Unfortunately, every legislature over the past three decades have always added non-budgetary items to the process.”

‘Affront to democratic values’

Numerous stakeholders aren’t buying what Bradley and Sununu are selling in the way they portray the language of the law.

JerriAnne Boggis, executive director of the Black Heritage Trail of New Hampshire, said the budget is an “affront to democratic values.”

“The Black Heritage Trail of New Hampshire is displeased by the passing of a state budget and bill that impedes the ability for New Hampshire’s citizens to engage in open and honest conversations about racism and other forms of systemic oppression,” Boggis said in a statement. “It silences the voices of many people in our state, banning from public schools and state agencies specific types of conversations about histories of inequality and their continuing legacy. This is a step backwards, not a step forward.”

James McKim, president of the Manchester NAACP, called the inclusion of “non-fiscal items” such as the modified divisive concepts language, the abortion ban after 24 weeks and school voucher program, “disturbing, surprising and disappointing.”

He said the budget language makes New Hampshire “unwelcoming” for young people looking to start their careers here, especially younger people of color, for a state with one of the oldest populations in the country.

“We really need to continue the dialogue if we are to get past the divisions we face in our country today,” McKim said. “Having these honest conversations will not deepen our divisions, it will only help heal them.”