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U.S. Federal Courts

Federal lawsuit challenging New Hampshire classroom censorship law filed

‘This law erases the legacy of discrimination & lived experiences of Black & Brown people, women, LGBTQ+ people, & people with disabilities’

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The Warren B. Rudman U.S. Courthouse for the New Hampshire district , Concord (Photo Credit: U.S. Courts/GSA)

CONCORD, N.H. – A diverse group of educators, advocacy groups, and law firms filed a federal lawsuit Monday challenging a New Hampshire classroom censorship law, contained within state budget bill HB2, which discourages public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity in the classroom.

New Hampshire is one of many states across the country that passed similar laws in 2021 aimed at censoring discussions around race and gender in the classroom.  This is the third federal lawsuit in the country to facially challenge one of these bans, including the ACLU’s recently filed lawsuit challenging Oklahoma’s classroom censorship law.

The lawsuit argues that HB2’s vague language unconstitutionally chills educators’ voices under the 14th Amendment, and prevents students from having an open and complete dialogue about the perspectives of historically marginalized communities, as well as on topics concerning race, gender, sexual orientation, gender identity, and disability.  

The lawsuit was brought by New Hampshire school administrators Andres Mejia and Christina Kim Philibotte, who both specialize in diversity, equity, and inclusion. The lawsuit was also brought by the National Education Association – New Hampshire (NEA-NH), which is comprised of more than 17,000 member educators in New Hampshire and represents the majority of all public school employees in the state. 

They are represented by lawyers from a broad coalition of organizations and law firms, including the NEA-NH and National Education Association, the ACLU, the ACLU of New Hampshire, Disability Rights Center – New Hampshire, GLBTQ Legal Advocates & Defenders, Nixon Peabody LLP, Preti Flaherty Beliveau & Pachios LLP, and Shaheen & Gordon, P.A.

“We have dedicated our careers to creating an education 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,” said plaintiff Andres Mejia, the Director of Diversity, Equity, Inclusion, and Justice for the Exeter Region Cooperative School District, and plaintiff Christina Kim Philibotte, the Chief Equity Officer for the Manchester School District. “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. We are proud to join this broad coalition challenging this law.”

According to the lawsuit, the law is so unclear and vague that it fails to provide necessary guidance to educators about what they can and cannot include in their courses, and that it invites arbitrary and discriminatory enforcement—up to and including the loss of teaching licenses.

“This unconstitutionally vague law disallows students from receiving the inclusive, complete education they deserve, and from having important conversations on race, gender, disability, sexual orientation, and gender identity in the classroom,” said Gilles Bissonnette, Legal Director of the ACLU of New Hampshire. “It is an attack on educators who are simply doing their job. Just four months into the school year, teachers are reporting being afraid to teach under this law for fear of being taken to court. This law, through vagueness and fear, erases the legacy of discrimination and lived experiences of Black and Brown people, women and girls, LGBTQ+ people, and people with disabilities.”

Following the bill’s passage, the NEA-NH began to hear from teachers that they were confused about what they could and could not teach, and that they were scared of the repercussions for guessing wrong. On multiple occasions, NEA-NH and other groups sent letters to the state asking for specific clarification. These letters went unanswered and unacknowledged.

“Teachers are trained and experienced in education and have a duty to set their students up to be successful contributors to society,” said Megan Tuttle, President of the National Education Association – New Hampshire. “Across New Hampshire, parents and educators are working together to build stronger public schools and create opportunities for students. Parents and educators agree that students should learn complete facts about historical events like slavery and civil rights. They agree that politicians shouldn’t be censoring classroom discussions between students and their teachers, and that educators shouldn’t have their licenses and livelihoods put at risk by a vague law.”

Although significant advances have been made in protecting the legal rights of people with disabilities, they continue to confront discrimination, ableism, stigma, and bias on a daily basis. For instance, in New Hampshire, school discipline has proven to be disproportionately harsh on students with disabilities, with even higher suspension rates for students of color with disabilities. Breaking down these barriers, both physical and societal, has required and continues to require open discussion about difficult subjects by people of all ages, especially by young people in educational settings. 

“The banned concepts statute is a significant threat to the disability rights movement,” said Stephanie Patrick, Executive Director of Disability Rights Center-NH. “Necessary classroom discussions about disability, mental illness, ableism, inclusion, and other related topics will not occur if teachers fear that they will face discipline as a result. The chilling effect of this law not only threatens continued progress toward an inclusive society, it also jeopardizes the progress we have already made.”

In New Hampshire, LGBTQ+ youth face staggering levels of discrimination, with a 2019 state survey assessing school climate for LGBTQ+ youth in the state’s secondary schools finding that up to 63% of respondents reported verbal harassment for sexual orientation, and up to 22% reported physical harassment. 

“Every day, dedicated teachers and administrators in New Hampshire public schools work to help students understand the world around them and prepare them for success as adults in this increasingly diverse state and country. This includes teaching the full picture of American history—both good and bad—so that students can reconcile its effect on our society in the present,” said Chris Erchull, Staff Attorney at GLBTQ Legal Advocates & Defenders. “Setting vague conditions on what educators can say about race, gender, gender identity, sexual orientation, and disability not only harms students with historically marginalized identities but creates a climate of fear that denies all students the freedom to learn and the opportunity to develop critical thinking skills, and to appreciate human differences.”

The lawsuit asks the court to declare the Banned Concepts Act unconstitutional under the 14th Amendment, and issue an order barring its enforcement.

NEA President Becky Pringle said, “Parents and teachers want to give kids – regardless of race and place – the best public education possible. They want kids to learn and grow and to prepare them to make sense of the present and prepare for the future. While educators—in New Hampshire and across the country—work to deliver our children an accurate and honest education, some policymakers continue to deny far too many of our children the resources needed for a quality public education based on what they look like or where they live. Now those politicians want to censor instruction, threatening educators with sanctions, including the loss of their very licenses to teach, for providing honest answers to students who ask how our history affects our present and how racism and sexism continues to impact our society. Our students deserve the truth so they can build the more perfect union for which we all long. Our educators deserve our support, not sanctions for educating our children.”

Emerson Sykes, Staff Attorney at the ACLU, said, “All young people deserve to learn an inclusive and accurate history in schools, free from censorship or discrimination. This law is drafted in a way that districts and teachers have no way of knowing what concepts and ideas are prohibited. The law unconstitutionally chills students’ and educators’ rights to learn and talk about race, gender, and disability and prevents students from having open conversations about our history.”

Morgan Nighan, an attorney with Nixon Peabody LLP, said, “Access to a public education that is equitable, inclusive and accurate is every students’ right. This bill attempts to censor what is taught in the classroom, to prevent honest, open dialogues about our country’s history with race, gender, gender identity, sexual orientation, disabilities, and many other marginalized groups. In order to avoid repeating the mistakes of the past, we must encourage students to explore our history with a critical eye and embrace our differences as strengths.”

Below are additional comments from:

Asma Elhuni, Movement Politics Director at Rights and Democracy NH, said, “Every child regardless of race, gender, or religion deserves the freedom to learn and develop the knowledge and skill set to wrestle with the past, create a better future, and have the opportunity to live out their dreams. Self-interested politicians have chosen to censor the truth from our students, robbing them of the ability to understand that mistakes do and have happened, and what we do with mistakes, whether we learn from them or decide to repeat them is what matters. Rights and Democracy is thankful to see such a broad range of people in our communities coming together to challenge this unjust law. Together we will prove that when we join forces, we can build schools where every student – no matter their color or zip code they live in- have the freedom to learn honest history and stride together for a better tomorrow where everyone will have the ability to thrive.”

Maggie Fogarty, NH Program Director at American Friends Service Committee, said, “The Banned Concepts Act prevents the learning and critical thinking that are essential for a healthy society. It harms teachers and administrators who are forced to navigate its vagueness under threat of penalty, as well as students who are denied access to education about essential concepts such as racism and injustice. New Hampshire communities are weakened by the silence and fear that this Act seeks to impose. It is truth-telling that is needed now, not censorship.  It is courage that is needed now, not fear.  The American Friends Service Committee applauds this important lawsuit as an effort to protect public education and democracy, and to support the ongoing and urgent work for a more equitable society.”

Zandra Rice Hawkins, Executive Director of Granite State Progress, said, “Our children deserve an honest education that teaches them about America’s triumphs and also where our country has failed to lead, so that we can continue to build a more perfect union. Far-right actors at the state and national level are using laws like this to slow progress on racial justice and diversity, equity, and inclusion efforts, and to further push for the privatization of public education. It is to our detriment as a society to let them succeed. We are thankful for this lawsuit.”

James McKim, Managing Partner of Organizational Ignition, said, “The Right to Freedom from Discrimination statute passed as part of 2021 NH HB2 (formerly called the ‘Divisive Concepts’ statute) is an example of how seemingly well-intentioned legislation, and I am being generous here giving the benefit of the doubt that the legislation’s sponsors had in mind the benefit of everyone – not just those socialized as white, can be more damaging than saying nothing. My consulting practice helping organizations benefit from the diversity in our state and nation has been significantly negatively impacted by this statute. And people of color I know around the nation have told me this legislation makes New Hampshire seem unwelcoming. It is not only poorly crafted in language, but this it was not asked for by those whom it seems to seek to protect which makes it poor governance as articulated by the NAACP’s legal challenge to Executive Order 13950 (the ‘Order’) on which the New Hampshire statute was modeled. The citizens of New Hampshire, deserve better.”

Ronelle Tshiela, Co-Founder of Black Lives Matter Manchester, said, “The law prohibiting ‘banned concepts’ is an attempt to root out teaching of systemic racism by forcing educators to be dishonest about our nation’s history. Black Lives Matter Manchester supports any effort to overturn it, and we applaud the educators who are fighting back.”

This lawsuit comes weeks before the start of the 2022 New Hampshire legislative session, which will include multiple bills designed to double down on classroom censorship. HB1255 would expand New Hampshire’s Cold War-era “teacher loyalty” law to restrict the teaching of “any doctrine or theory promoting a negative account or representation of the founding and history of the United States.” HB1313 would expand HB2’s banned concepts language to include the state’s public higher education institutions. Legislation has also been introduced, including HB1090 and SB304, which would repeal the banned concepts language in HB2 and replace it with language that would protect educators who teach about the “historical or current experiences” of protected groups.

This lawsuit was filed in the United States District Court for the District of New Hampshire.

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U.S. Federal Courts

High Court to hear case of school prayer but not anti-LGBTQ web designer

The Justices added five new cases including the case of a fired former Bremerton, Washington assistant high school football coach

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The Justices of the United States Supreme Court (Photo Credit: U.S. Supreme Court)

WASHINGTON – After their private conference on Friday, the Justices of the U.S. Supreme Court added five new cases to this term including the case of a former Bremerton, Washington assistant high school football coach removed for refusing to halt his practice of praying at mid-field after games.

The court however declined to hear the case of a website designer who refused to create custom sites for same-sex weddings.

SCOTUSblog senior reporter Amy Howe reportedthe case of the football coach involves Joseph Kennedy, a practicing Christian whose religious beliefs require him to “give thanks through prayer, at the end of each game.” When he began his job as an assistant coach at Bremerton High School, a public school in Washington state, he initially prayed alone after games, but over time some of his players – and eventually a majority of the team – joined him. One parent complained that his son, a player on the team, felt like he had to join in the prayer, even though he was an atheist, or face a loss of playing time.”

Bremerton School District officials had attempted to accommodate Kennedy after warning him to stop the prayers as District officials clarified that they did not want to violate the Constitution’s establishment clause, which prohibits the government from favoring one religion over another.

The district offered Kennedy the ability to pray after the crowd had left the stadium or in a private space both options that he refused. Kennedy had retained counsel and the legal team indicated that they would pursue father legal action.

According to media accounts he then prayed publicly with his players at two more games after which he was placed on administrative leave. After a review which included a recommendation by the head football coach that he be terminated, Kennedy was let go and then filed a federal lawsuit alleging that Bremerton School District had violated his First Amendment rights and federal civil rights laws.

Joseph Kennedy being interviewed by NBC News affiliate KING-TV 5, Seattle, Washington

Kennedy came to the Supreme Court in 2018 seeking to get his job back while litigation continued. The court turned him down, but Justice Samuel Alito penned a statement regarding that denial that was joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. Alito wrote that Kennedy’s free-speech claim raised important issues, and he suggested the case may warrant review in the future,” SCOTUSblog reported.

Ultimately, the U.S. District Court rejected Kennedy’s argument ruling against him and the case was then heard by a 3 judge panel of the U.S. Court of Appeals for the 9th Circuit, which upheld that decision. The 9th Circuit turned down a petition for an En banc (full) review by the entire 9th Circuit.

Kennedy returned to the Supreme Court in September 2021, telling the justices that the 9th Circuit’s ruling used “imagined Establishment Clause concerns to inflict real Free Exercise Clause damage,” he argued adding; “The religious expression of hundreds of thousands of teachers in the Ninth Circuit is now on the verge of extinction,” he contended. Moreover, Kennedy added, the ruling’s “chilling effects elsewhere around the country are palpable, as the Ninth Circuit essentially held” Kennedy’s “efforts to publicize the denial of his constitutional rights against him.”

The school district countered that whether Kennedy has the right to a “brief, quiet prayer by himself while at school” “is entirely beside the point” – particularly when, the district insisted, “every word of that description is wrong.” The dispute before the court, it stressed, is “about a school district’s authority to protect students when its employee does not work with it to find a reasonable accommodation.” A ruling for Kennedy, the school district warned, would require the Supreme Court “to overturn decades of settled law under both the Free Speech and Establishment Clauses,” SCOTUSblog reported.

The Justices declined to take up a case on appeal from the U.S. Court of Appeals for the 10th Circuit, 303 Creative LLC v. Elenis, brought by The Alliance Defending Freedom, (ADF)- listed by the Southern Poverty Law Center as an anti-LGBTQ extremist hate group.

The case stemmed from a Lakewood, Colorado based web designer, who sued to challenge Colorado’s anti-discrimination law. ADF filed its appeal last Fall asking the U.S. Supreme Court to review that ruling.

Lorie Smith, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression, citing that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

In its 2-1 ruling, the 10th Circuit panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

In a statement issued by ADF, the Arizona based firm claimed; “The 10th Circuit issued an unprecedented decision in the case, 303 Creative v. Elenis, holding that Colorado’s Anti-Discrimination Act both forced Lorie “to create websites—and thus, speech—that [she] would otherwise refuse,” and also created a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue,” including Lorie’s beliefs about marriage.”

ADF added; “The lawsuit contends that Colorado Revised Statute § 24-34-601(2)(a) violates the First Amendment’s Free Speech and Free Exercise clauses. The state law is the same one the commission twice used against Masterpiece Cakeshop cake artist Jack Phillips, who is currently being harassed by an activist attorney in a third lawsuit that also attempts to use Colorado’s law against him. After a trial resulted in a decision against Phillips, ADF attorneys representing him and his shop have appealed that case to the Colorado Court of Appeals.”

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet, the Associated Press reported.

But if she did, Olson said, her argument would mean she would refuse to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. He said that would be discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mark Beck Briscoe wrote in the majority opinion (303 Creative, et al. v. Elenis, et al.) that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, `essential’ to our democratic ideals.”

In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.

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U.S. Federal Courts

Anti-LGBTQ legal group appeals ruling against anti-LGBTQ photographer

ADF’s attorneys in their appeal argued the New York state laws go against the First and Fourteenth Amendments

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Thurgood Marshall United States Courthouse, New York City (Photo Credit: U.S. Courts/GSA)

NEW YORK – The Alliance Defending Freedom (ADF), filed an appeal Wednesday with the United States Circuit Court of Appeals for the Second Circuit asking the court to overturn a lower Federal court ruling that dismissed a suit brought by a New York photographer asking to gain an exemption from state law regarding same-sex marriages.

Emilee Carpenter, an Elmira-based wedding photographer had filed a lawsuit Federal lawsuit claiming that New York’s anti-discrimination laws violated her right to refuse photographing same-sex marriages.

She was represented by ADF which is listed by the Southern Poverty Law Center as a hate group because it has supported the idea that being LGBTQ+ should be a crime in the U.S. and abroad and believes that is OK to put LGBTQ+ people in prison for engaging in consensual sex. It has also supported laws that required the forced sterilization of transgender Europeans.

ADF has spread lies about the LGBTQ+ community. It has, for example, linked being LGBTQ+ to pedophilia and claimed that a “homosexual agenda” will destroy society.

U.S. District Judge Frank P. Geraci Jr. ruled that Emilee Carpenter’s suit “would relegate [same-sex couples] to an inferior market than that enjoyed by the public at large,” under New York State statutes. He then dismissed the case.

ADF’s attorneys in their appeal with the 2nd Circuit Court of Appeals, argued the New York state laws go against the First and Fourteenth Amendments, restricting their client’s rights to freedom of speech and the free exercise of religion. 

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U.S. Federal Courts

Feds must evaluate Trans prisoner for gender-affirming care, judge rules

“Denied basic medical care to treat her gender dysphoria & housed in men’s prisons where she experienced severe physical and sexual violence” 

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Photo credit: U.S. Federal Bureau of Prisons

CHICAGO – A federal judge in Illinois ruled that the U.S. Federal Bureau of Prisons (BOP) must evaluate a trans woman incarcerated in Texas for gender-affirming surgery – a first of its kind ruling that could improve the treatment of trans prisoners across the country. 

In the ruling issued on Dec. 27 in the U.S. District Court for the Southern District of Illinois, Chief Judge Nancy Rosenstengel ruled that the Transgender Executive Council (TEC) within the BOP must evaluate a request from Cristina Nichole Iglesias – a 47-year-old trans woman who has been in custody for more than 27 years – for gender-affirming care by Jan. 24. 

If the TEC recommends Iglesias for gender-affirming care, the BOP’s medical director must assess Iglesias within 30 days and report to the court about progress on locating a surgeon. 

If the TEC decides not to recommend Iglesias for surgery, they must provide a detailed explanation to the court. 

“For years, Cristina has suffered greatly from the denial of appropriate healthcare and the constant threats to her life while in BOP detention,” said John Knight, LGBTQ Project director at the American Civil Liberties Union (ACLU) of Illinois. “Cristina has fought for years to get the treatment the Constitution requires. The court’s order removes the unnecessary hurdles and delays BOP has repeatedly constructed to prevent her from getting the care that she urgently needs.”

Iglesias has been seeking gender-affirming care since at least January 2016.

According to the ACLU of Illinois, the BOP has known Iglesias is a trans woman since she first arrived in prison in 1994. Yet, she was “denied basic medical care to treat her gender dysphoria and was housed in men’s prisons for more than two decades, where she experienced severe physical and sexual violence.” 

The ruling adds that BOP staff has “failed to protect her.”

In her ruling, Rosenstengel writes: “Iglesias has been on suicide watch multiple times while in BOP custody and has attempted self-harm. Iglesias has and will continue to endure mental and physical harms because of the BOP’s mistreatment of her gender dysphoria.”

Previously, the lawsuit resulted in Iglesias being transferred to a federal prison that aligns with her gender. According to the ACLU of Illinois, she is one of the few transgender prisoners ever moved to the correct prison. 

The court also found that the BOP’s unwritten criteria for delaying Iglesias’ transfer to a female facility and its denial of gender-affirming care were “forbidden post hoc justification[s] created in response to litigation.”

In an email to the Los Angeles Blade, the BOP declined to comment on the specifics of the ruling. However, a spokesperson did say, “The BOP’s team of subject-matter-experts provide a wide range of gender-affirming accommodations based on comprehensive and individualized assessments. These accommodations can include gender affirming surgical referral when deemed appropriate.”

“We hope that the order directing BOP to move forward will result in medically necessary and long overdue healthcare for Cristina—and, in time, for the many other transgender people in BOP’s custody who have also been denied surgery and other much-needed gender-affirming care,” Knight said. 

According to the ACLU of Illinois, there are currently 1,200 transgender prisoners in federal custody. To date, no prisoner has ever received gender-affirming surgery from the BOP.

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