By ADAM DRAPCHO, Granite State News Collaborative

Photos by Allegra Boverman for GSNC

CONCORD – When the state's controversial “divisive concepts” law was being debated last year, critics of the proposal called it a solution in search of a problem that would stifle open discussion of sensitive topics in public school classrooms.

Now, more than a year after the law took effect, the head of the state's Commission on Human Rights said that agency has received no credible claims that any New Hampshire teachers have run afoul of the law.

A leading supporter of the law in the Legislature said he doubts that's true, but even if it is, it just shows that the law is working.

The information from the Human Rights commission was provided in response to a request for public information, and comes as the state defends itself against a lawsuit challenging the law’s constitutionality.

The law, technically known as the Right to Freedom From Discriminaiton in Public Workplaces and Education, forbids any public school educator – from kindergarten through 12th grade –  from teaching that any person is inherently inferior based on their race, sex, ability, or that any class of people would inherently consider themselves superior to any other class. The law invites members of the public to police any educator they think has broken the law by reporting claims of discrimination to the state’s Commission for Human Rights.

Ahni Malachi, the commission’s executive director, said any complaint filed under the state’s new law would follow the same path as any other alleged violation of the state’s anti-discrimination laws. The first step would be a simple analysis of the complaint, which can be filed through a portal on the commission’s website, to see if the allegation would indeed run afoul of state statutes.

If a complaint were determined to be grounds for an investigation, one of the commission’s investigators would review evidence in the matter to determine if probable cause exists to hold a hearing into the matter. If the investigator finds probable cause exists, both parties are then invited to reach a settlement, administered by a volunteer mediator. If no conciliation is reached, the complaint could go to a public hearing in front of a Human Rights Commission panel, which would make a finding that would be posted on its website for the public to view.

The law states that penalties for violations could include up to a loss of a teacher’s license, which would effectively end that educator’s career in public schools.

Malachi said in an email that state administrative rules prohibit her from releasing any details about initial complaints – those rules are intended to protect the privacy of complainants, as well as the reputations of the accused. However, she said if any members of the public have made claims of violations, none have been deemed to be credible by the commission’s initial review.

NH Bulletin reported this week that one case is pending before the commission.

Working as intended

Keith Ammon, R-New Boston, the main sponsor for the original “Divisive Concepts” bill that passed the House but stalled in the Senate, questioned whether there were truly no credible complaints within the last year. But even if that’s true, he said in an interview, that doesn’t mean that the law hasn’t had an effect. He called the legal challenges to the law “frivolous” and said they “will likely be dismissed. There have been zero credible examples of this preventing the teaching of accurate history.” He noted that 25 other states have passed or are considering similar legislation. 

“We should all be happy when students and teachers in New Hampshire are not discriminated against. Or should we expect teachers, school administrators, and other public officials to attempt to circumvent the law? Even if it is the case that there have been ‘zero credible complaints’ to date, doesn’t this show the law is working as intended?”\

While his bill isn’t the one that became law, he said the Right to Freedom From Discrimination addresses some of the concerns he first brought to the Legislature.

Ammon said his inspiration for the bill came from an employee at a state university, someone Ammon said wishes to remain anonymous. “The idea was to adapt President Trump’s 2020 executive order 13950, ‘Executive Order on Combating Race and Sex Stereotyping,’ and apply it at the state level,” Ammon said.

The need for the law, he said, was due to a “small cadre” of teachers who use their classroom as a “personal indoctrination center for students. Instead of focusing on teaching the fundamentals, they’re indoctrinating young students with corrosive race or gender essentialism.”

He said the law “ensures that formal or informal curriculum does not interfere with our shared goal of creating a truly colorblind society,” and that while the state has a tradition of local control over curriculum, he said it sometimes becomes necessary for the Legislature to “step in to ensure that Critical Race Theory isn’t infiltrating classrooms.”

The law addressed Ammon’s concern about public school students and public employees facing discrimination based on certain characteristics, but stopped short of prohibiting tax dollars being used by contractors to teach, “that our country and state, and all their constituting institutions, were designed to perpetuate racism and sexism,” he said, adding that he doesn’t currently plan to bring forward additional legislation on this matter.

It took a couple of swings for the Legislature to get the law onto the books. First introduced by Ammon in the 2021 legislative session as HB 544 and commonly known as the “Divisive Concepts” bill, that legislation focused on training provided by state contractors and was modeled after a short-lived executive order issued by President Donald Trump

HB 544 never made it out of the Senate after Gov. Chris Sununu promised to veto it. Instead, Senate Majority Leader Jeb Bradley, R-Wolfeboro, added a revised version of the language – aimed at public educators – to the biennial budget package that was signed by Sununu in June 2021.

Bradley, who is up for re-election this fall, declined to be interviewed for this article. Sununu and his education commissioner, Frank Edelblut, also declined to be interviewed, citing the pending litigation.

These articles are being shared by partners in The Granite State News Collaborative as part of our Race and Equity Initiative. For more information visit collaborativenh.org.