A few minutes after the school intercom switched off following the end of day announcements, I looked down at my phone and saw the breaking news: A federal judge struck down New Hampshire’s “Divisive Concepts” law due to its vagueness.
The 2021 law was part of a nationwide push to censor teacher speech and prohibit the instruction of the complex scope of history. Overnight, topics relating to race, gender, and the legacies of racism and sexism became fraught within school districts throughout the country. Teachers who covered these grounds in their classrooms questioned if and when they might be called to an administrative office and told their services were no longer needed.
The presiding judge, Paul Barbadoro, noted in his decision that the New Hampshire law “force[s] teachers to guess as to which diversity efforts can be touted and which must be repudiated, gambling with their careers in the process.”
This resulted both in self-censorship and the enforcement by school districts of precautionary censorship to avoid legal jeopardy.
Books were taken off classroom shelves out of fear of violating the law. The New Hampshire Department of Education created a portal for reporting teachers who dared to speak up for honest, fact-based histories. A bounty was issued with a $500 reward for the first person to report a teacher.
Despite the obstacles, many teachers taught the truth and spoke out to news media, in writing, and through informal groups. These teachers did not conform under the immense pressure of the law. Others simply left the profession—a protest in itself.
As similar laws spread across the country, teachers partnered with the ACLU and the Southern Poverty Law Center to challenge the constitutionality of such measures. In Rhode Island, a law was defeated in committee, and in Arizona, it was struck down by the State Supreme Court. In Georgia, on the other hand, a law has been fully enacted, and one educator was fired for reading the children’s book My Shadow Is Purple to her class.
Assessing the varied legal strategies, Professor Derek Black of the University of South Carolina stated in 2023 that he believed the arguments addressing the chilling effect of the laws on teachers’ free speech presented the strongest cases for combatting “Divisive Concepts” laws.
Black’s analysis was prescient in New Hampshire, where Thurgood Marshall’s dissent in Arnett v. Kennedy held sway. Marshall had written in 1974, “For every employee who risks his job by testing the limits of the statute, many more will choose the cautious path and not speak at all.” In the “Divisive Concepts” case, the judge concluded that the vaguely worded statute provided no clear guideline for determining what kind of educational efforts were allowed or prohibited, leaving district administrators to err on the side of an overly broad application of the law, not knowing when an accusation of a violation might surface. All of this adds tremendous strain on our profession and public schools, arguably the central institutions of our communities.
The ruling could bode well for Oklahoma, where the primary argument for striking down “Divisive Concepts” was based on the vagueness of the law. Yet the positive outcome in New Hampshire comes with a warning: There’s still a possibility that the legislature could address the issue of vagueness with more direct language aimed at limiting speech on topics related to race and gender.
Like other states that have passed corrosive laws targeting public schools, New Hampshire must now decide the kind of civic culture we want to have today and for the next generation.
Our small state has long received outsized attention due to hosting the first primary election in the nation. As such, New Hampshire takes its role in the process of picking a President seriously. From the tiny hamlet of Dixville Notch down to Manchester and many small towns in between, there is a sense of civic pride in asking candidates tough questions. There is also a strong sense of pride in each of our local public schools—a trust in the professionalism and experience of our neighbors who teach.
The ban on books and teaching honest history was anathema to the civic culture of New Hampshire. Or at least it put a dent in what many of us saw as our down-to-earth civic sensibility. We understood Florida, Texas, and Oklahoma had similar bills. But could it be that the politically purple Granite State could have such censorship? The answer was clear: It could and did happen here. And it would have continued to happen here had it not been for a federal judge.
All of this is noteworthy in determining whether New Hampshire becomes a bellwether in the campaign for reaffirming a national commitment to a democratic, pluralistic civil society. We have seen laws that attempt to limit teaching and learning—a departure from the principle of the classroom being a “marketplace of ideas.” We have also seen the shortcomings of past curricula that left important stories untold. This brings us to a moment where we all have a collective choice: recommit to the project or backslide on affirming the promise of a more perfect union.
The long awaited win in federal court provides hope for educators. That hope is most palpably felt in my home state of New Hampshire, but educators across the United States should take it to heart. It is the hard work of educators who choose to teach the truth and to speak up for what’s right that creates the foundation of civic life and the potential for civic renewal. But the promise of liberty and justice for all takes all of us working together—victory over “Divisive Concepts” legislation is a chance to improve how we do democracy and support learning for each and every student. We cannot afford to waste this opportunity.
Jacob Goodwin is a sixth grade social studies teacher and the 2021 New Hampshire History Teacher of the Year.