Rosemary Ford, Rachel Ford

GSNC/NHPBS

The State We’re In program

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Critics say that the Divisive Concepts, or Freedom From Discrimination law, puts a chill on important conversations about race and history in schools. It specifically prohibits schools or governmental agencies from teaching that an individual is racist, sexist, or otherwise oppressive by virtue of their age, sex, or other identity, either consciously or unconsciously. The state legislature is currently considering a handful of bills that would enact changes to the law from repealing it to expanding its reach to universities and colleges. Joining the State We’re In host Melanie Plenda to discuss the issue is JerriAnne Boggis, executive director of the Black Heritage Trail of New Hampshire; state Senator David Watters; Granite State News Collaborative reporter, Jenny Whidden; and Jonathan Friedman, director of Free Expression and Education for PEN America. Later, 8th grade American History teacher at Portsmouth Middle School Erin Bakkom weighs in with her perspective.

This content has been edited for length and clarity. Watch the full interview on NH PBS's The State We’re In.

Melanie Plenda: It seems like the phrase ‘Critical Race Theory’ has become a catchall and it's come to mean different things to different people. JerriAnne, what is actually being taught in our schools? 

JerriAnne Boggis: Critical Race Theory is a theory just like any other that is studied at the college level. When we are thinking about the complexity of our civic engagement, I think there's this misconception that we teach Critical Race Theory at the K-12 level when really it's a college level course that asks us as citizens of our country to think critically about our history and go beyond just buzzwords. We're looking at socially constructed ideas of race to help us understand systemic issues that continue to plague our country. If we are to be good citizens in our country, we need to understand systemic issues, how things are created, and how we maintain a certain structure that leaves out a whole slew of other people.

Melanie Plenda: Jonathan, you've been tracking similar laws across the country for PEN America. Can you give us some background on where these laws came from and what's going on here?

Jonathan Friedman: For many years, there has been a debate around higher education campuses and free speech controversies, and rising tensions concerning guests coming to campuses. Invitations were canceled, there were calls for professors to be fired. In response to this, there's been all kinds of tinkering with legislation. This idea that the best solution to challenges concerning discourse on campus would be new regulations was pushed by the government itself, particularly advanced by Republicans around the country. The extent to which one political party should be pushing legislation seemingly in favor of free speech in general but making itself the arbiter of how it was going to govern conversations on campuses has always been a questionable strategy.

What we've seen in the past two years is that idea of tinkering spread down to K-12 schools, and many of the same proposals that were in the ether all have been mixed-and-matched and cookie-cut around the country. What we're seeing now is just an explosion of all kinds of legislative proposals in different states; we're tracking about 120 now or more this year that do all kinds of things. Whereas some of this originated and was propelled by former president Trump's executive order about diversity training, some of it was propelled by a proposal by Senator Tom Cotton with something called the Saving American History Act, which was essentially a prohibition on teaching the 1619 project. Some of this has been propelled by other elements with other interests; a significant number of anti-LGBTQ proposals are also being advanced, as well as these efforts to prevent the 1619 project, or prevent open conversations about race.

What started as a smaller version of a bill and a set of divisive concepts is now a bill expanding what they're trying to prohibit; it's the scope that's expanding as well. Even in New Hampshire right now, we see this push to take this Freedom From Discrimination law that was passed last year and make it explicitly apply to colleges and schools and teachers in a more heavy handed way than the law already does the laws. It already exists and was already a concern. Now there's all this effort to make it essentially even more menacing.

Melanie Plenda: Senator Watters, can you give us some background on how this made it into law in New Hampshire?

Sen. David Watters: The New Hampshire statute began as house bill 544 in last year's session, and it too was derived from former president Trump’s executive order in response to the 1619 project. The 1619 project had brought forward what educators have been working on for a long time, a recognition that we can't understand the American struggle for freedom and equality without placing the African American, BIPOC, and women’s experience at the center of that. House bill 544 was unable to pass the house. It was a much more extensive piece of legislation, but the core of it was then included in the budget. What we were told in the Senate was that if this language and the language about abortion was not included in the budget, then the budget would not be able to pass the Republican caucus in the house.

There was agreement from Republican leadership and the governor to sign off and include these items in the budget, and that's why we have what we have now. The problem with the law that has been amplified is that it does include that phrase inherently in describing certain groups and then the conscious or unconscious nature of that. It mentions that if you teach these things as historical, like it happened in the past but has no connection to today, that perhaps that's okay. If you were described the two and a half centuries of laws, Supreme court decisions, segregation, housing discrimination, and so forth as representing a kind of settled habit of the way in which America was governed then you would be open to lawsuits from parents and the potential loss of your teaching license. We've had Senate hearings on bills that are meant to repeal or replace these provisions, because we are hearing from teachers, superintendents, and principals about the deleterious effect this is having on educators.

Melanie Plenda: Jenny, I know you've been tracking these developments for the Granite State News Collaborative, there are other laws seeking to augment the so-called Divisive Concepts law. Can you tell us about those?

Jenny Whidden: There are two bills in particular of the about seven or eight that are related to the original law that would kind of double down on this concept. House Bill 1313 would expand the legislation's reach to include post-secondary educational programs - that's higher education, universities, and colleges. Currently while the law does apply to training for faculty of public universities and colleges, it does not really touch what is taught in college level classrooms. House Bill 1313 would do that. The university system of New Hampshire and the community college system representatives have spoken against that bill. 

There is one other bill that has gained a lot of attention, and it’s House Bill 1255. It is referred to as the Teacher's Loyalty bill. This one updates a cold war era law that bans educators from advocating for communism in schools. This legislation, if passed, would ban advocating for specifically socialism Marxism and any other doctrine which includes this is language: from the bill, “overthrow by force of the government of the U.S.” This legislation is meant to target negative teaching of U.S. history, but also specific ideologies such as socialism.

Melanie Plenda: Thank you all so much for the conversation and for joining me today for a look at the impact the law is having on teachers. We are now joined by Erin Bakkom, an eighth grade American history teacher at Portsmouth Middle School. What kind of impact has the freedom from discrimination law had on you and your students this year?

Erin Bakkom: There's just a lot of questions right now because both the law and the subsequent follow up have not had clear indicators for teachers of what we can and cannot do. According to the follow up, we are fine to teach about all the topics that we always have. I don't believe that any part of their curriculum teaches that a particular person based on race or gender is inherently racist. There's been a lot of questions as to what has happened to cause this. When you have questions about dialogue, about what to do, you're hampering the authentic dialogue that we want to have with kids in classroom discussions. There's concern that if a student asks certain questions, what can we say? I don't believe that that has been made clear to us.

Melanie Plenda: What has teaching been like this year? You've alluded to not having a clear understanding of what the law entails, so what do you do going forward in that kind of landscape?

Erin Bakkom: We continue asking for the clarification of what has been said that has caused this law. What are the examples of how we're here so that we better understand what to avoid? There's hesitation about, do I need to go look at this before I answer a question? The best thing we can do as educators is to keep having authentic dialogue and following that up. I don't believe that this is something happening in classrooms. I'd like to see the examples of where it is and I want to keep having authentic dialogue with kids to answer their questions as honestly as we can, and to provide them a range of multiple perspectives. We should always be asking, what perspectives are missing? How do we provide that perspective so that students can make decisions for themselves and the questions that they have?

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.