Educators Lawsuit Against New Hampshire's Right to Freedom from Discrimination in Public Workplaces and Education

The Maine Writer

On January 12, Federal Judge Paul Barbadoro ruled that the lawsuit challenging New Hampshire's Right to Freedom from Discrimination in Public Workplaces and Education law may proceed. The federal lawsuit was filed on December 20, 2021, by New Hampshire school administrators Andres Meijia and Christina Kim Philibotte, who specialize in diversity, equity, and inclusion, along with the New Hampshire National Education Association.

Lawyers representing Mejia, Philibotte, and the New Hampshire National Education Association include the ACLU, the ACLU of New Hampshire, and GLBTQ Legal Advocates & Defenders.

Andrew Mejia is the Director of Diversity, Equity, Inclusion, and Justice for the Exeter, New Hampshire Region Cooperative School District, and Christina Kim Philibotte is the Chief Equity Officer for the Manchester, New Hampshire School District.

The lawsuit was filed over the Right to Freedom from Discrimination in Public Workplaces and Education. That is what the bill calls the law, while the lawyers filing the lawsuit refer to the law as "banned concepts." The educators claim the law is unclear and vague and fails to provide necessary guidance to educators about what they can and cannot include in their courses. The lawsuit also claims the law is unconstitutional under the 14th Amendment.

The lawsuit claims the law discourages public school teachers from instruction in the classroom about race, gender, sexual orientation, disability, and gender identity in the classroom. The law also allows for teachers who violate the law to be brought in for disciplinary hearings and could potentially lose their teaching license.

Mejia and Philibotte say they have dedicated their careers to creating an educational community where every student, including black and brown students, students of color, students from the LGBTQAI+ community, students with disabilities, and students from other historically marginalized identities, feel like they belong. This law chills the very type of diversity, equity, and inclusion work that is absolutely necessary to ensure that each student is seen, heard, and connected, especially as New Hampshire becomes more diverse.

The ACLU in the lawsuit says the law is unconstitutional and disallows students from receiving the inclusive, complete education that they deserve. The law also prevents having important conversations on race, gender, disability, sexual orientation, and gender identity in the classroom. The law, through its vagueness and fear, erases the legacy of discrimination and the lived experiences of black and brown people, women and girls, LGBTQ+ people, and people with disabilities.

Here is the exact text from the bill:

354-A:29 Right to Freedom from Discrimination in Public Workplaces and Education.
I. The general court hereby finds and declares that practices of discrimination against any
New Hampshire inhabitants because of age, sex, gender identity, sexual orientation, race, creed,
color, marital status, familial status, mental or physical disability, religion, or national origin are a
matter of state concern, that discrimination based on these characteristics not only threatens the
rights and proper privileges of New Hampshire inhabitants but menaces the institutions and
foundation of a free democratic state and threatens the peace, order, health, safety and general
welfare of the state and its inhabitants.

II. Nothing in this subdivision shall be construed to prohibit racial, sexual, religious, or
other workplace sensitivity training based on the inherent humanity and equality of all persons and
the ideal that all persons are entitled to be treated with equality, dignity, and respect.

III. Nothing in this subdivision shall be construed to limit the academic freedom of faculty
members of the university system of New Hampshire and the community college system of New
Hampshire to conduct research, publish, lecture, or teach in the academic setting.
354-A:30 Definitions.

In this subdivision:
I. “Government program” means any activity undertaken by a public employer, both as an
employer and in performance of its government function.
II. “Public employee” means any person working on a full-time or part-time basis for the
state, or any subdivision thereof, including, but not limited to counties, cities, towns, precincts,
water districts, school districts, school administrative units, or quasi-public entities. III. "Public employer" includes the state or any subdivision thereof, including, but not
limited to counties, cities, towns, precincts, water districts, school districts, school administrative
units, or quasi-public entities.

354-A:31 Prohibition on Public Employers. No public employer, either directly or through the
use of an outside contractor, shall teach, advocate, instruct, or train any employee, student, service recipient, contractor, staff member, inmate, or any other individual or group, any one or more of the
following:
I. That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital
status, familial status, mental or physical disability, religion, or national origin, are inherently
superior or inferior to people of another age, sex, gender identity, sexual orientation, race, creed,
color, marital status, familial status, mental or physical disability, religion, or national origin;
II. That an individual, by virtue of his or her age, sex, gender identity, sexual orientation,
race, creed, color, marital status, familial status, mental or physical disability, religion, or national
origin is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
III. That an individual should be discriminated against or receive adverse treatment solely
or partly because of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital
status, familial status, mental or physical disability, religion, or national origin; or
IV. That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and
should not attempt to treat others equally and/or without regard to age, sex, gender identity, sexual
orientation, race, creed, color, marital status, familial status, mental or physical disability, religion,
or national origin.

354-A:32 Prohibition on the Content of Government Programs and Speech. No government
program shall teach, advocate, or advance any one or more of the following:
I. That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital
status, familial status, mental or physical disability, religion, or national origin are inherently
superior or inferior to people of another age, sex, gender identity, sexual orientation, race, creed,
color, marital status, familial status, mental or physical disability, religion, or national origin; II. That an individual, by virtue of his or her age, sex, gender identity, sexual orientation,
race, creed, color, marital status, familial status, mental or physical disability, religion, or national
origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;
III. That an individual should be discriminated against or receive adverse treatment solely
or partly because of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital
status, familial status, mental or physical disability, religion, or national origin; or
IV. That people of one age, sex, gender identity, sexual orientation, race, creed, color,
marital status, familial status, mental or physical disability, religion, or national origin cannot and
should not attempt to treat others equally and/or without regard to age, sex, gender identity, sexual
orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin.

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