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The State We’re In program
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Perhaps it's ironic — or even prophetic — that something purporting to stop so-called "divisive concepts" would be so divisive.
A lawsuit concerning these relatively new state regulations is making its way through the court system.
What are these concepts? What do they mean? And why is there a lawsuit against the state about them? In July, The State We’re In host Melanie Plenda explored these questions with NAACP President James McKim, Granite State News Collaborative Reporter Adam Drapcho, ACLU-NH Legal Director Gilles Bissonnette, and plaintiff Tina Philibotte, who serves as the Manchester School Districts Chief Equity Officer.
This content has been edited for length and clarity. Watch the full interview on NH PBS's The State We’re In.
Melanie Plenda: Adam, can you give us some perspective on the notion of divisive concepts? Where does it come from? Why has it suddenly become an issue?
Adam Drapcho: The term divisive concepts comes from an executive order that former president Trump signed toward the end of his administration. That order had to do with the training of federal employees, particularly, to bar training that might suggest that some people had inherent biases toward others of different genders, races, or ideologies. That order was quickly thrown out by his predecessor after Trump left office but the charge was quickly taken up in 2021 by conservative state legislatures across the country, including in New Hampshire.
Melanie Plenda: James, can you explain for people who might not be familiar with the law, why it's so concerning? Why are you concerned?
James McKim: It's concerning for a number of reasons.. On the surface, it seems that the law is encouraging equality, but if we look at it a bit closer we see that the law itself is divisive. It's saying that there should be no teaching that anyone's inherently superior based on age sex, gender or identity or sexual orientation or marital status or family status or mental or physical ability. It further goes on to say that it should not be taught that anyone is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
This bumps into two concepts that we know about, one being unconscious implicit bias and the other is a recent field of study called epigenetics that shows that we take characteristics and traits and beliefs from our our ancestors, from our parents. That notion that we're not inherently racist, sexist, or oppressive is debatable. It further goes on to say that an individual cannot be, or should not be, discriminated against or receive adverse treatment solely or partly because of their age, sex, race, et cetera. If we need to come to a society where we're erasing the inequalities, then we need to treat people differently. We need to treat people equitably, not just equally. There's a concern here that this law says that we need to treat everyone equally when that's not going to get us to a real equal society. We need to treat people equitably instead.
Melanie Plenda: When the language in the state budget passed, how would you characterize the reaction? Memorably half of the governor's advisory council on diversity and inclusion quit.
James McKim: When HB 1544 did not pass we thought that we were going to be able to move past it but the sponsors took the very unorthodox action of including it in the budget, which is generally not done and certainly has nothing to do with the budget itself. It was very disappointing that the sponsors decided to do this. In this state, we have this notion that cities and towns through their school administrative units have the authority to decide what is taught and how it's taught in their school districts. This is further eroding that notion of local control. As you mentioned his own diversity advisory committee, half of them resigned because they advised him not to allow this to pass and he went ahead and passed it anyway.
Melanie Plenda: Tina, you're the chief equity officer with the Manchester school district, but you are bringing this in your own individual capacity. What was your reaction as an educator when you heard about this new regulation that became law through the state budget?
Tina Philibotte: We're coming to a place where we're starting to lift up diversity, equity, and inclusion practices to create more culturally sustaining practices and training for our students. Our goal is to make sure every kid feels like they're seen, heard, valued, like they belong. For something like this to come through creates a chilling effect and says to teachers, we don't trust you. As an educator, we have curriculum that's established that says what we teach on a school level and a district level.
My daughter spent more time at school sometimes than she did at home with all of her activities. If you're saying that you don't trust your educators, it puts us in a position where if we were found to be in defiance of this law, then that would mean that we have the potential of losing our job. We lose our teacher certification. We are being forced into making this choice. Do I do what I think is right for my students? Do I teach a full history and have discussions about the things that are happening in our kids' lives every day?
As a parent, my daughter had been one of the people who had given testimony when it was HB 544. At the time she was a senior in high school. She had given a speech about her experience in high school and how this law would inhibit her ability to continue doing the social justice work that her and her friends had already started. Immediately after she gave testimony for that piece, someone had posted a photo of her on Twitter. They named what high school she went to, how old she was, and had shown some previous Twitter activity. Within seconds, she started getting death threats. When a senior in high school wants to speak and get engaged, that was the response. She got sent a very clear message out to her, to other kids who want to speak up that this is what's going to happen if you speak out.
Melanie Plenda: Let's turn to the lawsuit. Tina, how did you become a plaintiff in the lawsuit challenging these regulations and what impact has that had on you?
Tina Philibotte: Educators are advocates for students first and foremost, and the only way it seemed that we were gonna be able to fight this is through the courts. Educators are afraid to come forward and engage in this way because they don't want to lose their licenses. They don't want to be in a position with their administrators where they're bringing attention to them that they might not want. For me, someone needs to step forward and say that this is not okay. I need to model that for my daughter and for my students and for fellow educators. I know not everybody is in a position where they're able to do that.
When we were talking about joining the lawsuit, Andres [Mejia, director of diversity, equity, inclusion and justice for the Exeter Region Cooperative School] and I had connected with some close friends who do this work, including James, and our friends were worried about us. Andres was already getting threats to his life and to his body, my daughter had received death threats just by saying something out loud against this law, so there was real fear. I can understand why other teachers and other folks aren't wanting to get engaged. They don't feel safe, and our safety is certainly at risk in this space too. Though at the end of the day, our community came together and is in support of both Andres and I and all of the folks working hard to fight this law. Gilles and Andres and I spent a lot of time together at the beginning talking about the law, the experience, how important it is for our kids to be seen in the curriculum that we teach. It’s about justice and making sure that our kids get what they need and what they deserve and what we have promised, which is an education.
Melanie Plenda: It should go without saying that any kind of threats of violence to your daughter or to Andres or to any of you should be unacceptable to all of us. I'm so sorry that you've had to live through that at all. Gilles, can you give us some background on the court case, explain who the plaintiffs are, what they're alleging and what remedy they seek? Where do things stand?
Gilles Bissonnette: As a lawyer involved in this case, it's an honor to represent Tina Philibotte on this case, as well as Andres Mejia. Andres is the director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, also bringing this case in its individual capacity. AFT and NEA New Hampshire are also plaintiffs in this lawsuit challenging this law. These lawsuits were filed back in December of 2021 and in short what these lawsuits allege is that the law is unconstitutionally vague and ambiguous. What exactly does that mean? Why is this ambiguity a problem? It's a problem because it creates and causes self censorship among educators. It creates a chill on important discussions concerning race, gender, sexual orientation, gender identity, and disability. This is because the statute's ambiguities combined with the severe penalties is going to and has caused educators to be incentivized to act cautiously, with prohibitions under the statute interpreted as expansively as possible.
Naturally an educator is going to want to avoid the prospect of a complaint investigation or even ruin their career. The penalties here are severe. They go so far as to include the loss of a teacher's license, a teacher's very livelihood. We've since learned after we filed the lawsuit that this chill is happening every day in New Hampshire schools, and these are vital discussions that are essential to linking texts to modern society so students can better relate to the material. These discussions are also essential to creating a sense of belonging for our most vulnerable children. We know that books are not being presented that otherwise would've but for this law. The very harm that we were worried about when this law was being discussed last year and when we filed this lawsuit in December materialized throughout the school year last year, and it will continue to materialize during the upcoming school year.
Melanie Plenda: Can you tell us where things stand with that lawsuit, and can you walk us through, what the state’s response is as part of this lawsuit?
Gilles Bissonnette: The state filed a motion to dismiss. What the state says in essence is that no, the law is not ambiguous, it is clear. As educators have said throughout the state, it is far from clear and moreover the state has failed to even answer basic questions as to whether certain texts are covered under the statute. As an example, you know, for example is Tiffany Jewels' book This Book is Anti-Racist, a book by an author of color designed to empower middle school students of color. Is it covered under the statute? The state won't say, and it is these very types of questions that are vital to educators.
They have to make judgment calls every day in the classroom not only about what to say, but what texts to assign, but in response to these questions there has been silence, which leads to our position, which is that the law was so clear, the answers to these questions would be easy. The guidance that's been issued by the state, which is also what the state relies on in the case, has been similarly unhelpful because there's been no guidance as to whether specific texts can or cannot be used, which I feel very strongly has caused teachers to be left to dangle in the wind. The refusal to answer these basic questions raises a more concerning prospect, which is perhaps the ambiguity and confusion caused by the statute and all the self censorship that chills these important discussions that come with it was the point of the statute all along.
These articles are being shared by partners in The Granite State News Collaborative as part of our race and equity project. For more information visit collaborativenh.org.