Striking down the ‘divisive concepts’ law is a win for students, AFT-NH president says

Federal Judge Paul J. Barbadoro announced a decision Tuesday that struck down New Hampshire’s controversial “divisive concepts” law, calling it unconstitutional and a violation of the 14th Amendment.

The law, which banned teachers from discussing topics such as race and gender inside K-12 classrooms, was modeled by efforts promoted by former president Donald Trump to restrict schools from teaching students key social and academic topics, like critical race theory, systemic racism, LGBTQ+ history, and certain elements of American history. 

The Granite Post spoke with Deb Howes, the president of the New Hampshire chapter of the American Federation of Teachers—a national teacher-led union that brought the lawsuit against the “divisive concepts law”— about the implications on teachers in NH and what the state could expect next in terms of its politically driven education policies. 

What was the divisive concepts law, and when was it put in place in New Hampshire? 

Divisive concepts is the name of the bill that was introduced back in 2021, and it was based on the idea that somehow schools were teaching students that they were inherently racist or inherently sexist, that students were responsible for both historical problems in our country and current problems that resulted from historical discrimination and injustices in our country.

It was based on this idea that we were indoctrinating students in our public schools, that we were teaching them things that we aren’t teaching them.

It was a bill that stifled robust, honest education and hurt our public school students and their ability to get a quality education in New Hampshire.

What exact conduct or lesson from a teacher would have violated the law? And what penalties were attached to it for teachers? 

If you violated the law, it would be considered a violation of the teacher code of ethics and code of conduct. You could lose your license, and could no longer work as a teacher in New Hampshire. You could lose your job. You could lose your ability to get a job anywhere else. 

People could be punished over subjective understanding of their actions. You just have to have someone believe that that’s what the words you have said mean. 

How did parents use that loophole to suppress freedom of speech for teachers in school? 

What it did was it allowed a parent who wanted to complain to create an atmosphere of fear. So, parents could complain to the principal, or they could complain to the school board and threaten to bring charges of violating this law. 

Someone might just think that you are crossing that line, and you could be investigated. School districts in many places don’t want controversy, and would encourage not pushing those boundaries or backing away from them.

And of course, some parents had that direct line to the Commissioner of Education Frank Edelblut. I mean, he put up a form right on the website and encouraged people to contact him.

As you mentioned, the education commissioner has been very political about this whole issue. What would the repeal of the law mean for his legacy? 

Once someone got in the commissioner’s email box, or got on the phone to him, he would get on the phone to the school district and send his investigator down. He would keep pushing for them to investigate something that he was sure was a violation.

He’s the commissioner of education. That is a non-political job! But he’s out there doing hit pieces on educators, calling them activists and saying they’re hurting children.

Again, the law’s been found unconstitutional, and he’s never bothered to define where that line is that teachers are actually transgressing 

He’s got some outdated talking points from maybe the 1950s, but maybe he ought to go into public schools and take his blinders off. 

Despite the repeal of divisive concepts, is there a fear that something could happen to appeal the decision? 

That certainly is how the judicial system works. I don’t see where there’s much in that decision that gives him hope for an appeal, but I’m not his counsel. 

Remember, we are underfunding our public schools half a billion dollars every year. So the money the state is wasting on defending him, and this badly written law, really should be going to our public schools. 

Do you think that this decision would impact the legitimacy of any other politically driven policy moves by the state or the Department of Education?

I would hope it would give lawmakers a pause to think that, again, we’re spending our money in the wrong place. This law was too vague to pass constitutional muster, but I don’t see the current crop of legislators showing that amount of common sense. I really see them, unfortunately, too determined to believe their own misinformation.

This interview has been edited and condensed for length and clarity.