Local 8027, AFT-N.H. v. Edelblut

651 F.Supp.3d 444

2023 DNH 005

LOCAL 8027, AFT-N.H., AFL-CIO, et al. v. Frank EDELBLUT, Commissioner, N.H. Department of Education, et al.

Case No. 21-cv-1077-PB

United States District Court, D. New Hampshire

Signed January 12, 2023

David A. Vicinanzo, Nixon Peabody LLP, Manchester, NH, Chris Erchull, GLBTQ Legal Advocates & Defenders (Glad), Boston, MA, Morgan C. Nighan, Nixon Peabody LLP, Boston, MA, Emerson J. Sykes, Leah Watson, Sarah Hinger, American Civil Liberties Union Foundation, New York, NY, Henry Klementowicz, SangYeob Kim, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, Jennifer A. Eber, Kayla Jade Turner, Pamela E. Phelan, Sarah J. Jancarik, Disability Rights Center, Concord, NH, Suzanne Amy Spencer, William E. Christie, Shaheen & Gordon, Concord, NH, Peter J. Perroni, Chelmsford, MA, for Andres Mejia, Christina Kim Philibotte.

Emerson J. Sykes, Leah Watson, Sarah Hinger, American Civil Liberties Union Foundation, New York, NY, Esther Kane Dickinson, NEA, Concord, NH, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, Nathan Reed Fennessy, Rue Toland, Preti Flaherty Beliveau Pachios LLP, Concord, NH, Jason Walta, National Education Association, Washington, DC, Lauren Snow Chadwick, New London, NH, Peter J. Perroni, Chelmsford, MA, for National Education Association-New Hampshire.

Peter J. Perroni, Chelmsford, MA, Charles Moerdler, David Kahne, Elizabeth Clarke Milburn, Stroock Stroock & LaVan LLP, New York, NY, Emerson J. Sykes, Leah Watson, Sarah Hinger, American Civil Liberties Union Foundation, New York, NY, Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH, for Local 8027, AFT-New Hampshire, AFL-CIO, Joceyln Merrill, Kimberly Green Elliot, Ryan Richman, Meghan Evelyn Durden, John Dube.

Samuel R. V. Garland, NH Attorney General's Office (Civil), Concord, NH, for Frank Edelblut, Commissioner, N.H. Department of Education, et al.

MEMORANDUM AND ORDER

Paul J. Barbadoro, United States District Judge

The plaintiffs in these consolidated actions are public school teachers, administrators, and teachers' associations. They challenge the constitutionality of several recent amendments to New Hampshire's education and antidiscrimination laws that restrict what public school teachers can say to their students about how to understand, prevent, and redress discrimination in our society. Several of the plaintiffs contend that the new laws violate their First Amendment right to free speech. They all argue that the laws are unconstitutionally vague. The defendants have responded with a motion to dismiss for failure to state a claim.

I. BACKGROUND

The laws at issue in this case have their genesis in New Hampshire House Bill 544 ("HB544"), which was captioned "An Act relative to the propagation of divisive concepts." The core components of HB544 were later added by amendment to House Bill 2 ("HB2"), a budget bill that was passed by the House and sent to the Senate on April 7, 2021. The Senate made substantial changes to HB2's divisive concepts provisions, which appear in Section 297 and 298 of the bill, and rebranded them as antidiscrimination laws. Differences between the House and Senate versions of the bill were resolved in conference, and HB2 became law on June 25, 2021.

HB2 made several changes to the state's education and antidiscrimination laws.¹ The amendment to the education laws, codified at N.H. Rev. Stat. Ann. ("RSA") § 193:40, identifies four concepts that a public primary or secondary school student may not be "taught, instructed, inculcated or compelled to express belief in, or support for":

(a) That one's age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin is inherently superior 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;

(b) 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;

(c) 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

(d) 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 without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.

RSA § 193:40, I.

HB2 also added several new sections to chapter 354-A, known as the "Law Against Discrimination," that employ substantially similar versions of the banned concepts. RSA § 345-A:31 makes it unlawful for a public employer to "teach, advocate, instruct, or train" the banned concepts to "any employee, student, service recipient, contractor, staff member, inmate, or any other individual or group." RSA § 354-A:32 similarly states that "[n]o government program shall teach, advocate, or advance" any of the banned concepts. And RSA § 354-A:33 protects public employees from being disciplined for refusing to participate in any activity "at which a public employer or government program advocates, trains, teaches, instructs, or compels participants to express belief in, or support for," any of the banned concepts.²

RSA § 193:40, III permits the Attorney General, or any other person "claiming to be aggrieved by a violation" of the new law, to obtain damages and injunctive relief from an offending school or school district, either by filing a lawsuit in superior court or by filing a complaint with New Hampshire's commission for human rights. RSA § 345-A:34 similarly permits a person "aggrieved" by a violation of the antidiscrimination amendments to pursue "all of the remedies available under" chapter 354-A, which include compensatory damages and injunctive relief.

RSA § 193:40, IV provides that a "[v]iolation of this section by an educator shall be considered a violation of the educator code of conduct that justifies disciplinary sanction by the state board of education." An "educator" is defined as "a professional employee of any school district whose position requires certification by the state board [of education]." RSA § 193:40, V. Potential disciplinary sanctions include reprimand, suspension, or revocation of an educator's certification. See N.H. Code Admin. R. Ed 511.01. In other words, an educator who is found to have taught or advocated a banned concept may lose not only his or her job, but also the ability to teach anywhere in the state. See id.; see also id. Ed. 501.02(ad).

The new laws create safe harbors for certain conduct that may otherwise constitute teaching or advocacy of a banned concept. RSA § 193:40, II allows "discussing, as part of a larger course of academic instruction, the historical existence of ideas and subjects identified" by a banned concept. RSA § 354-A:29, II permits public employers to conduct "racial, sexual, religious, or other workplace sensitivity training based on the inherent humanity and equality of all persons." And RSA § 354-A:29, III disavows any limitation on "the academic freedom of faculty members" at public colleges and universities.

Passage of the education and antidiscrimination amendments led to immediate controversy over their scope. The following month, three state agencies — the department of education, the commission for human rights, and the department of justice ("enforcing agencies") — produced collective guidance regarding the scope and effects of the new provisions. Framed as "Frequently Asked Questions" ("FAQs"), one guidance document dealt with K-12 educational programs and the other concerned public employers and government programs. Both FAQs defined the term "inherent" in the first two banned concepts as referring to characteristics that are "natural, biological, or innate, as opposed to characteristics that are merely apparent, accidental, or based on external factors." Doc. Nos. 36-8 at 1; 36-9 at 1. The FAQs also explained that the amendments do not prohibit training or education geared toward diversity, equity, equality, and inclusion, such as implicit bias training.

In September 2021, the New Hampshire Attorney General ("AG") issued an official opinion concerning the scope and application of the new laws, after some stakeholders raised concerns that they were "confusing and that public employers and schools will struggle to understand the scope of the new prohibitions." Doc. No. 36-10 at 1. Describing the new statutory provisions as "legislation of limited reach," id. at 5, the AG opined that the first two banned concepts proscribe advocacy that one identified group has "natural, biological, or innate characteristics, as opposed to apparent or accidental characteristics that: (1) make them superior or inferior to other identified groups or (2) make one identified group racist, sexist, or oppressive." Id. at 3. According to the opinion, the last two banned concepts prohibit advocacy "that any identified group can or should be treated unequally to any other identified group and that one identified group should be discriminated against or treated adversely." Id.

In December 2021, two groups of plaintiffs challenged the new laws in separate complaints filed against the education commissioner and other state officials. The first group consists of five educators, two of whom are also parents of children enrolled...