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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

Ketanji Brown Jackson sworn in as 116th justice of the U.S. Supreme Court

“It has taken 232 years and 115 prior appointments for a black woman to be selected to serve on the Supreme Court of the United States”

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Screenshot/YouTube SCOTUS TV via the Associated Press

WASHINGTON – In oaths administered by the Chief Justice John Roberts and outgoing Associate U.S. Supreme Court Justice Stephen Breyer, Judge Ketanji Brown Jackson was sworn in as the 116th justice of the U.S. Supreme Court.

The 51 year-old Justice Jackson made history as the first-ever black woman sworn in as a justice on the U.S. Supreme Court. She replaces Justice Breyer, whose resignation from the Supreme Court becomes effective at noon Thursday (Eastern) after his nearly 28 years of service on the nation’s high court.

In the simple ceremony held at the Court, Jackson in the constitutional oath, given by Chief Justice Roberts, solemnly swore to defend the Constitution “against all enemies, foreign and domestic,” and “bear true faith and allegiance to the same.”

Justice Breyer gave her the statutory oath, in which Jackson swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

The newly sworn-in Associate Justice was joined by her husband, Dr. Patrick Jackson, and their two daughters, Talia and Leila.

The court will hold another formal inaugurating ceremony, called an investiture, in the fall, Roberts said. But Thursday’s ceremony allows her to immediately begin work as the newest member of the nine-seat Supreme Court.

Nominated by President Biden and confirmed by the Senate, in April at a ceremony on the South Lawn of the White House, addressing the audience of members of Congress, the Biden Cabinet, and White House staff along with family and invited guests, Justice Jackson noted;

“As I take on this new role, I strongly believe that this is a moment in which all Americans can take great pride. We have come a long way towards perfecting our union. In my family, it took just one generation to go from segregation to the Supreme Court of the United States.” 

As the first Black woman to be nominated to serve on the nation’s highest court which she noted in her remarks:

“It has taken 232 years and 115 prior appointments for a black woman to be selected to serve on the Supreme Court of the United States. But we’ve made it,” she said, to applause from the crowd. “We’ve made it, all of us, all of us. And our children are telling me that they see now, more than ever, that here in America anything is possible.“

Quoting Maya Angelou, an American author, poet and civil rights activist, “I am the hope and the dream of the slave,” Jackson said.

In statement issued by the White House, President Biden traveling back from the NATO conference in Madrid aboard Air Force One said:

“I am honored that the very first judicial nominee I selected as President – the brilliant lawyer who became “Judge Jackson” – has now become “Justice Jackson.” 

Her historic swearing in today represents a profound step forward for our nation, for all the young, Black girls who now see themselves reflected on our highest court, and for all of us as Americans. 

The Supreme Court just gained a colleague with a world-class intellect, the dignified temperament the American people expect of a justice, and the strongest credentials imaginable.  

Justice Jackson is a former public defender who served for almost a decade as a district and circuit judge.  Her nomination was endorsed by top legal experts across the political spectrum, as well as our country’s leading law enforcement organizations.  In her career, she has been confirmed four times by the U.S. Senate with bipartisan support.

She is the daughter of educators and the niece of a police chief—and she too has devoted her life to public service. 

She is also the embodiment of hard work, grace, and perseverance.

Justice Jackson’s wisdom and experience, will make all of us proud for so many years to come.

Like I said after her confirmation, Justice Jackson’s ascension to the highest court in the land makes the sun shine on so many of us in a new way.

Justice Jackson succeeds another extraordinarily brilliant jurist who has also devoted their life to their country, including in the U.S. Army as a teenager and on the Watergate Committee  – Justice Steven Breyer. Justice Breyer’s integrity and his commitment to ensuring our nation’s laws worked for the people have made him beloved by his colleagues and deeply respected across our country. I thank him again for his many years of exemplary service.”    

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U.S. Federal Courts

U.S. Supreme Court upholds Biden’s ability to enforce immigration laws

In its 5-4 ruling the high court said that the president may repeal the Trump-era ‘remain in Mexico’ policy

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Screenshot/YouTube NBC News

WASHINGTON – The U.S. Supreme Court on Thursday in a 5-4 ruling said the Biden administration can end a policy that forced asylum seekers to pursue their cases in Mexico.

The previous White House’s Migrant Protection Protocols program, which became known as the “Remain in Mexico” policy, took effect in 2019.

The Biden administration suspended MPP enrollment shortly after it took office in January 2021. The program was to have ended six months later, but a federal judge in Texas ordered MPP’s reinstatement after the state and Missouri filed suit against the Biden administration.

Thursday’s ruling sends the Texas and Missouri case back to lower courts.

“As Secretary Mayorkas concluded in October 2021 after a thorough review, the prior administration’s Migrant Protection Protocols (MPP) has endemic flaws, imposes unjustifiable human costs and pulls resources and personnel away from other priority efforts to secure our border,” said the Department of Homeland Security in a statement. “We welcome the Supreme Court’s decision affirming that the Secretary has the discretionary authority to terminate the program, and we will continue our efforts to terminate the program as soon as legally permissible.” 

U.S. Sen. Alex Padilla (D-Calif.) also welcomed the ruling.

“Today’s Supreme Court decision correctly acknowledges the Biden administration’s authority to end the unlawful and cruel ‘Remain in Mexico’ program,” he said in a statement. “For more than three years, this horrifying policy has denied asylum seekers their right to due process and subjected them to crimes like rape, kidnapping and torture in northern Mexican border cities while they await their court hearings.”

Advocates sharply criticized MPP, in part, because it made LGBTQ+ and intersex asylum seekers who were forced to live in Tijuana, Ciudad Juárez, Reynosa, Matamoros and other Mexican border cities even more vulnerable to violence and persecution based on their sexual orientation and gender identity.

[email protected] Coalition President Bamby Salcedo on Thursday told the Los Angeles Blade the Supreme Court ruling “will certainly impact our community in a positive way.”

“We know that people who have to remain in Mexico to wait continue to be victims of violence,” said Salcedo. “This is definitely a step in the right direction and we’re grateful that this happened in this way.”

Emilio Vicente, communications and policy director of Familia: TQLM, an organization that advocates on behalf of Transgender and gender non-conforming immigrants, echoed Salcedo.

“We’re glad to finally have some good news from the Supreme Court after horrible rulings on abortions, climate change, Native American rights,” said Vicente. “Ending ‘Remain in Mexico’ will allow LGBTQ+ asylum seekers who face increased discrimination and abuse during the journey to the U.S., to be able to seek asylum here.” 

Abdiel Echevarría-Cabán is a South Texas-based immigration attorney and human rights law and policy expert who the LGBTQ+ Bar in 2021 recognized as one of its 40 best LGBTQ+ lawyers who are under 40.

He told the Blade on Thursday the Supreme Court ruling is “a victory we must celebrate.” Echevarría-Cabán also said MPP placed LGBTQ+ and intersex asylum seekers at increased risk. 

“Refugees in general, but especially LGBT refugees, are extremely vulnerable to other type of harms such as kidnappings by cartel members, extortion, physical and psychological abuses from Mexican law enforcement authorities and third parties given the high levels of discrimination for LGBT refugees in Mexico,” said Echevarría-Cabán.

The Supreme Court issued its ruling a day after the Justice Department filed charges against four people in connection with the deaths of 53 migrants who were found in the back of a tractor trailer truck in San Antonio.

The Biden administration in April announced its plans to terminate Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the pandemic. Title 42 was to have ended on May 23, but a federal judge ruled against the White House.

“This decision isn’t the end of the fight for ensuring that people seeking asylum get asylum but it’s an important step in protecting vulnerable people,” Vicente told the Blade after Thursday’s ruling. “President Biden must follow through on his commitment to end MPP and protect all asylum seekers.”

Salcedo noted to the Blade the “system, as it is, particularly when it comes to trans women, needs to be completely changed so that we can be at a better place as a community.” Padilla in his statement urged the Biden administration “to do everything in its power to swiftly end ‘Remain in Mexico’ once and for all.”

“Misguided and inhumane Trump-era policies like ‘Remain in Mexico’ and Title 42 have only decimated an already broken immigration system,” he said. “We must keep working to restore the lawful processing of asylum seekers at the border, in keeping with America’s most deeply held values as a nation of immigrants.”

The Department of Homeland Security in its statement notes Title 42 remains in place.

“The department also continues to enforce our immigration laws at the border and administer consequences for those who enter unlawfully, and will continue the court-mandated enforcement of the Centers for Disease Control and Prevention’s Title 42 public health order,” it reads.

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U.S. Federal Courts

Supreme Court sides with ex-football coach who led prayers at school

“Justice Gorsuch’s majority opinion is yet another dangerous example of this Court overturning decades of precedent”

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

WASHINGTON – The U.S. Supreme Court on Monday in a 6-3 ruling sided with the former Bremerton, Washington assistant high school football coach removed for refusing to halt his practice of praying at mid-field after games on school property.

The ruling is a victory for Joseph Kennedy, who in court documents described himself as 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.

The case eventually ended up at the high court which agreed to hear it at the beginning of this last term in January.

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

Reaction from groups advocating for greater safeguards in separation of ‘church and state’ decried the majority decision written by Trump nominated Associate Justice Neil Gorsuch.

Equality California noted that the Court’s ruling in Kennedy v. Bremerton School District effectively was overturning decades of established legal precedent.

“Justice Gorsuch’s majority opinion is yet another dangerous example of this Court overturning decades of precedent to impose the personal religious beliefs of some on the rest of the country — whether that be a public school football coach’s religious beliefs on his team, a legislator’s views on people in their state seeking abortion care or the views of a religious private school on taxpayers now forced to fund them.

“Parents have always been free to send their children to schools that align with their religious beliefs, and coaches who want to lead their players in prayer have always been free to work at private schools where that is encouraged. But students — of any religion or none at all — attending public schools funded by taxpayers should not be coerced into school-sponsored prayer,” Equality California’s Executive Director, Tony Hoang, said in an emailed statement.

“Every public school student deserves to feel safe, supported and welcome at school. Today’s decision undermines that fundamental idea at a particularly dangerous time for our LGBTQ+ students.”

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