New Hampshire’s ‘Divisive Concepts’ Law and the Big Chill

New Hampshire’s ‘Divisive Concepts’ Law and the Big Chill

By John Greabe

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others],” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

Criticism of these speech restrictions is deserved. The restrictions are, at the very least, antithetical to our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” (New York Times v. Sullivan, U.S. Supreme Court, 1964). To take one of many possible examples, the question of whether affirmative action should be constitutional in the racial context might well return to the Supreme Court next term in Students for Fair Admissions v. Harvard College, a case that is pending on its docket. The case involves whether Harvard is unlawfully discriminating against Asian American applicants in how it conducts its admissions processes. What a wonderful contemporary issue to discuss and debate in a high school civics class, right?

The divisive concepts law flouts this tradition of providing public servants with room to breathe as they make judgment calls in fluid and challenging circumstances, as teachers often do. The law puts a target on the backs of teachers and declares open season. Frankly, it is difficult to conclude anything other than that chill is the goal – especially when one considers that earlier versions of the bill quite openly sought to prohibit many classroom discussions of the effects of racism and sexism. The clear message to teachers is “discuss discrimination in its various forms at your professional peril.”

We all should see the likely consequences of the divisive concepts law’s remedial provisions. Districts, schools, and teachers wishing to sidestep trouble will give wide berth to controversial topics such as the legacy of slavery, contemporary racism, sexism, religious bigotry, and other forms of discrimination, notwithstanding assurances that the discussion of such topics is perfectly permissible, as it surely is. The problem is chill. Discussions of such controversial topics could lead to misunderstandings – a daily occurrence in classrooms across the state – especially by listeners motivated to find statutory violations.

This in turn could ground charges of statutory violations brought by merely “aggrieved” (rather than “injured”) persons. As a result, many such discussions likely will not happen.

New Hampshire’s new divisive concepts law is very likely to chill important conversations from taking place in the state’s classrooms. The law should be repealed.

John Greabe is a law school professor, a former high school teacher, and the director of the Warren B. Rudman Center for Justice, Leadership and Public Service at the University of New Hampshire Franklin Pierce School of Law. He lives in Hopkinton.

The above abstract is from John Greabe, “New Hampshire’s ‘divisive concepts’ law and the big chill,” Commentary, Aug 10, 2021” available at https://newhampshirebulletin.com/2021/08/10/commentary-new-hampshires-divisive-concepts-law-andthe-big-chill/. Follow this and additional works at: https://scholars.unh.edu/law_facpub, Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Education Law Commons, First Amendment Commons, and the Law and Race Commons.