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Federal Judge Considers Dismissing New Hampshire “Divisive Concepts” Lawsuit

— September 15, 2022

The lawsuit contends that a New Hampshire law forbidding educators from speaking about “divisive” concepts relating to social inequality is overly ambiguous.

A federal judge is considering a motion from New Hampshire to dismiss a lawsuit over its so-called “divisive concepts” statute, which bars state educators from teaching that a person in one protected class is inherently superior to another.

According to The Associated Press, Judge Paul Barbadoro said that he would assess the motion and make a decision within 60 to 90 days.

The A.P. reports that two organizations had initially filed challenges against the Granite State’s anti-discrimination law: one brought by the National Education Association-New Hampshire, and another by two diversity, equity, and inclusion school administrators.

The two lawsuits have since been consolidated into a single complaint.

Collectively, educators claim that the language of the so-called “divisive concepts” law, which includes a “Prohibition on Teaching Discrimination,” is overly ambiguous, making it difficult for teachers to know what they are and are not allowed to say in the classroom.

The New Hampshire State Capitol Building in Concord. Image via Wikimedia Commons/user:AlexiusHoratius. (CCA-BY-3.0 Unported). (source link:

The Associated Press notes that the “Prohibition on Teaching Discrimination” prohibits teaching children that any race or protected class is inherently inferior, racist, sexist, or oppressive.

The similar “Right to Freedom from Discrimination in Public Workplaces and Education” prohibits training sessions or programs that teach that an identified protected class possess “natural biological, or innate characteristics as opposed to apparent or accidental characteristics” that make them inferior, racist, sexist, or oppressive.

The “divisive concepts” statute allows districts to take disciplinary actions against educators who violate the law and its prohibitions.

“This law has created fear among teachers who are not actually violating any New Hampshire law but fear they could be targeted without evidence by people with a political agenda,” American Federation of Educators-New Hampshire President Deb Howes said in December. “Educators are terrified of losing their teaching license over simply trying to teach.”

New Hampshire, adds U.S. News, is one of several Republican-controlled states that has passed laws restricting how educators can teach or talk about racism, sexism, discrimination, and other topics related to societal inequality.

The state’s “divisive concepts” law prohibits educators from informing students even about “unconscious biases” that could affect their interactions with others.

Additionally, the statute forbids teachers and school administrators from hosting employee workshops that deal with such issues.

The law’s language, adds the News, parallels an executive order that was signed into effect by former President Donald Trump but that has since been scrapped by the Biden administration.

The law allows state residents to report suspected violations online. If teachers are found in violation of the rule, they could be subject to disciplinary action up to and including termination.


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