As the state budget went through the legislature that year, New Hampshire had a provision in mind that is commonly referred to as “divisive concepts” legislation. The language has been a point of widespread controversy, but now that it is in law, many granite staters are wondering what exactly is in the bill.
Opponents of the law argue that it could scare conversations about systemic racism, white privilege, and implicit bias; Proponents say the legislation protects all granite staters from discrimination – including white people.
And while much of the original language of the bill mirrors former President Trump’s September executive order that prevented federal agencies from introducing certain “divisive concepts” into on-the-job training, much of the previously verbatim legislation has been amended or trimmed.
What’s written in the text?
Under the Act, “no public employer, either directly or through the use of an outside contractor, employee, student, service recipient, contractor, employee, detainee or other individual, shall teach, advocate, instruct or train, or group, one or more of the following”, taken directly from the invoice text:
That people of the same age, gender, gender identity, sexual orientation, race, religion, skin color, marital status, marital status, mental or physical disability, religion or national origin are naturally people of a different age, gender, gender identity, sexual orientation, race, creed, Skin color, marital status, marital status, mental or physical disability, religion or national origin;
That a person is inherently racist, sexist or oppressive, whether consciously or unconsciously, because of their age, gender, gender identity, sexual orientation, race, religion, skin color, marital status, marital status, mental or physical disability, religion or national origin;
That a person should be discriminated against or disadvantaged, solely or in part, on the basis of age, sex, gender identity, sexual orientation, race, belief, skin color, marital status, marital status, mental or physical disability, religion or nationality Origin; or
That people of the same age, gender, gender identity, sexual orientation, race, religion, skin color, marital status, marital status, mental or physical disability, religion or national origin cannot and should not try to treat others equally and / or ruthlessly according to age, gender, Gender identity, sexual orientation, race, belief, skin color, marital status, marital status, mental or physical disability, religion or national origin
These four ideas are then repeated, followed by the following:
No government program may teach, advocate, or promote any of the following:
No public employee shall be subjected to any adverse employment action, warning, or disciplinary action of any kind for refusing to attend any training, program, or other activity that any public employer or government program endorses, trains, teaches, instructs, or coerces participants of their belief or belief Express support for one or more of the following:
No public school student in this state may be taught, instructed, inculcated, or compelled to express belief in or support for any of the following:
The law contains clarifying provisions:
Nothing in this subdivision should be construed as prohibiting racial, sexual, religious, or other workplace sensitivity training that is based on the inherent humanity and equality of all persons and the ideal that all persons are entitled to equality, dignity and respect.
Nothing in this subdivision should be construed as limiting the academic freedom of faculty members of the New Hampshire University System and the New Hampshire Community College System to research, publish, teach, or teach in the academic setting.
Nothing in this section should be construed as precluding discussion of the historical existence of any ideas and topics identified in this section in the context of any major academic teaching.
The law also stipulates the following:
Anyone who claims they have been harmed by a violation of this section, including the Attorney General, may bring a civil action against a school or school district in a higher court for legal or fair compensation or with the New Hampshire Commission for Human Rights, as in intended RSA 354-A: 34.
Any violation of this section by an educator is considered a violation of the Educators Code of Conduct, which warrants a disciplinary sanction by the state education committee.
The term “divisive concepts” was first brought into the spotlight by Trump’s September order and has since been included in bills in at least five other states, including Rhode Island, West Virginia and Ohio.
Although the term “divisive concepts” appeared in early drafts of the original New Hampshire House Bill 544 and became an abbreviation for referring to the measure, that language does not appear in what ultimately became law.
New Hampshire law replaced “divisive concepts” with an alternate wording in the Senate as the term lacks an official legal definition, said Rep. Steven Smith, R-Sullivan.
“To put a brand new legal definition of a word in a law – we don’t know how that will turn out,” said Smith. “Something that is likely to be tried can be risky.”
Smith said instead of creating an entirely new law with new definitions, the Senate instead changed part of the original language of the house law – including removing the phrase “divisive concepts” and adding the rest to the existing budget anti-discrimination law.
Although Smith was not involved in the Senate process that cut and changed the draft budget to the language it is now in, he said it is likely that the ideas that were not included did not fit into the anti-discrimination law.
“It’s always better to start small,” he says.
This article is shared by partners in the Granite State News Collaborative as part of our Race and Equity project. For more information, visit kollaborativnh.org.