The “Freedom from Discrimination” law that educators say chills important conversations about race in schools and public institutions has been on the books for six months, but New Hampshire lawmakers are far from done with the legislation.
State officials are considering a handful of bills that would make changes to the law, ranging from repealing it to expanding its reach to universities and colleges. The law specifically prohibits schools or government agencies from teaching that an individual is racist, sexist, or otherwise oppressive because of their age, gender, or other identity — “whether knowingly or unknowingly.”
The new wave of legislation follows two ongoing lawsuits over the original law, claiming it is unconstitutionally vague and violates free speech. The plaintiffs include the two largest teachers’ unions in the state.
Proponents of the bill say the changes will strengthen New Hampshire’s race relations and protect everyone — including white people — from discrimination in schools and public workplaces.
Here are seven bills to keep an eye on this session. Each of the bills was assigned to a committee. If any of them pass, they will move to the House or Senate floor for a full vote.
Committee hearings for the bills can be watched live or after the fact on the New Hampshire House and Senate YouTube pages: the House can be found here and the Senate here.
Four bills this session seek to repeal the “freedom from discrimination” law.
Sponsored by Rep. Manny Espitia (D-Nashua) and Sen. David Watters (D-Dover), respectively, House Bill 1576 and Senate Bill 298 would each remove the law from the books.
Meanwhile, House Bill 1090 and Senate Bill 304 would also repeal the legislation – with the additional provision that “no education law of this State shall be construed to prohibit any employee from school to teach about the historical or current experiences of any group protected from discrimination.”
SB 304 has a provision that HB 1090 does not, adding protections for public employers who engage in or require “any form of training regarding the historical or current experiences of any group protected from discrimination.”
HB 1090’s sponsor, Newmarket Democratic Rep. Charlotte DiLorenzo, said that in addition to repealing the law, she thinks it’s important to make sure no New Hampshire bill can stop the students to receive an accurate education about the past.
“Students deserve an honest education that allows them to learn from past mistakes to help create a better future for our state and country,” she said. “(The current law) only prevents our children from developing the tools they need to succeed.”
DiLorenzo said she feels particularly concerned that topics related to systemic racism are discouraged from being taught in the classroom, and her bill would protect those topics.
“A lot of people deny systemic racism, but I see it loud and clear from the founding of this country until today. I know slavery and the proceeds of slavery were part of the founding of this country,” she said. “As we fast forward to what happened over the past two or three years with the murder of George Floyd and Ahmaud Arbery and Breonna Taylor, all of these things have been revealed to the world.”
Charlestown Republican Representative Steven Smith said that as a general rule he thinks immediate repeals are a bad idea, especially with legislation as complex as the Freedom from Discrimination Act.
“We just passed it,” Smith said. “You have to implement it and see how it works to see if it should be repealed or if it should be changed.”
Smith added that the law is important because it prevents New Hampshire educators and employers from teaching that people should have an opinion about another group of people simply because of who they are.
“How does racism manifest itself? You pick a group of people, assign them characteristics, and then say everyone in “demographic A” is lazy, dishonest. This is the real despicable part of racism. Isn’t it the same thing if I say that all white people are racist? Because that’s clearly not true. It is this thing that the (law) seeks to solve,” he said.
Smith said that while the problem is not present throughout New Hampshire’s education system, “to have it happen once is simply unacceptable.”
“(Teachers) should not use a classroom as some form of medium to promulgate their particular point of view. They should provide information, let the kids make their own choices,” Smith said.
The state’s largest teachers’ union, the National Education Association of New Hampshire, helped draft both HB 1090 and SB 304.
Brian Hawkins, director of government relations at NEA-NH, said comments from educators who have self-censored or curtailed their classroom discussions due to the current law have helped inform pending legislation.
“For public school educators, there are some very high stakes in this law,” he said. “The vagueness of it, coupled with the potential penalties, makes it simply unenforceable, and that supports the need to repeal it.”
The attorney general’s office, along with the Department of Education and the Human Rights Commission, issued guidance on the law in July, but Hawkins said that did not stem the confusion and concerns of educators.
Hawkins added that much of that concern stems from the law’s genesis, which was originally inspired by former President Donald Trump’s executive order that prevented federal agencies and other bodies from introducing certain “concepts of division” in workplace training.
“In its final version, the law retained at least four of those prohibited concepts that we saw in Trump’s original executive order,” Hawkins said. “These two elements – the components of the prohibited concepts as well as their vagueness, followed by the potential consequences for educators trying to follow this vague advice – do not really make this an anti-discrimination law.”
SB 304 appeared before the Senate Education Committee on January 12 at 1:45 p.m. HB 1090 will appear before the House Education Committee on February 8 at 10 a.m.
HB1576 is also scheduled for the House Education Committee on Feb. 8 at 11 a.m., while SB 298 will be heard by the Senate Judiciary Committee on Feb. 1 at 1:20 p.m.
House Bill 1255, “Teacher Loyalty,” would prohibit New Hampshire public school teachers from advocating for any “negative account or portrayal of the founding and history of the United States.” . The legislation specifically includes the idea that the country was founded on racism.
The legislation, which updates a Cold War-era law that bars educators from defending communism in schools, would also ban defending socialism, Marxism and “any other doctrine or theory that includes the overthrow by the strength of the government of the United States”.
“I hope it’s rare, but it certainly happens in our state – teachers who don’t educate but indoctrinate. I see this as very detrimental to students,” said the bill’s sponsor, Alicia Lekas. (R-Hudson), during the bill’s hearing on January 20.
HB 1255 was heard by the House Education Committee on January 20 at 11:15 a.m.
The “freedom from discrimination” law is currently limited to K-12 public education programs. In colleges, universities and other post-secondary institutions, the law applies to the training of staff and volunteers, but not to the teaching of students.
House Bill 1313 would expand the scope of the legislation to include public post-secondary education programs, such as the New Hampshire University System and other public colleges.
The bill’s sponsor, Rick Ladd, a Republican from Haverhill, told a hearing on the bill earlier this month that the legislation was created to outlaw discrimination in higher education.
“No one should be made to understand that their color, creed or other defining characteristics are inherently racist, sexist or oppressive, whether consciously or unconsciously,” Ladd said. “Any instructor aligning and communicating their own view of race relations with a national narrative that uses diversity and inclusion as a platform is unacceptable.”
The bill may violate the US Constitution, Devon Chaffee, executive director of the American Civil Liberties Union of New Hampshire, testified at the hearing.
“(The bill) is in fact a violation of longstanding Supreme Court precedent dating back more than 60 years protecting academic freedom,” Chaffee said. “More recently, the Supreme Court has made it clear that, particularly in the academic setting – exactly what HB 1313 is trying to target – there is no question that point-of-view-based speech suppression is impermissible.”
Representatives of the New Hampshire University System and the New Hampshire Community College System have also spoken out against the bill.
HB 1313 was heard by the House Education Committee on January 11 at 2 p.m.
House Bill 1638 — also sponsored by DiLorenzo — would change the process for complaints filed against educators under the Freedom from Discrimination Act.
The law currently allows people with complaints to “bring a civil action against a school or school district in a superior court for legal or equitable relief, or to the New Hampshire Human Rights Commission.”
HB 1638 would instead send complaints to the local school superintendent, who would conduct an “impartial investigation” and have 15 days from receipt of the complaint to render a decision on whether the law was violated.
“When I read about the complaints process I thought that was a bit wrong because all complainants have to do with the complaint form is fill in the blanks, sign their name and sign it. date,” DiLorenzo said. “I feel like there should be some sort of structure to authenticate what the person is saying, and that’s a warning against misrepresentation because there can be lots and lots of mistakes in an open process. like this, and there will be.”
Under DiLorenzo’s bill, if the complainant disagrees with the superintendent’s decision, they can appeal to the Department of Education. If the department also rejects the decision, the department may refer the case to the state Human Rights Commission or the New Hampshire Attorney General’s office.
“I think it seems fair that an educator can have a dialogue with the district superintendent first,” she said.
HB 1638 will go before the House Education Committee on February 8 at 9 a.m.
These articles are shared by The Granite State News Collaborative partners as part of our Race and Equity Project. For more information, visit collaborativenh.org.