The NH “Divisive Concepts” Law

Last year there was a lot of concern over New Hampshire Bill 544 which intended to stop public schools from teaching “divisive concepts.” Opponents claimed that the bill was an effort to limit teachers’ ability to educate students about discrimination, while supporters claimed that the bill would stop teachers from teaching discriminatory ideas. This bill failed on April 8th, but a version of the text was signed into law as part of the state budget trailer bill, House Bill 2, on June 25th. This bill is already in full effect, and Hanover High School teachers have received training on its implications.

But what are “divisive concepts”? Does this bill protect people from discrimination or actually reinforce discrimination?

The bill amends RSA 193, part of New Hampshire’s education code, to include a “Prohibition on Teaching Discrimination.” It now states that public schools cannot teach that one’s characteristics (such as sex, age, gender, race, etc.) are inherently superior to others’; that someone, due to their characteristics, is inherently oppressive; or that someone should be discriminated against because of their characteristics. Most people agree that teachers should be barred from spreading these three ideas, as they are pretty universally accepted as wrong.

The controversy stems from the fourth concept that teachers are banned from teaching: “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.”

At first glance this concept may too seem unarguably wrong: everyone should be treated equally regardless of their characteristics, you may be thinking. But when interpreted to its full extent, this law would stop schools from teaching, for example, that a disabled student should be allowed to use a computer on a test that other students have to take on paper. Luckily, student accommodations are protected elsewhere in the human rights code, but other ideas which are not protected elsewhere could be totally banned from being taught in classrooms. Affirmative action, the idea that students disadvantaged because of their race or another characteristic should be given access to the same opportunities as other students, may now not be taught because it espouses treating them differently on the basis of their race.

The issue arises from the fact that treating everyone equally is not the same as treating everyone fairly. Differences in someone’s characteristics will change what problems they face, what help they need, and how they ought to be treated, but the phrase “without regard to” means that all these differences will be erased and everyone will receive the same treatment. Under this law, teachers will have to paint a false picture of the world in which everyone faces the same problems and can be helped with the same tactics, which is obviously untrue.

So how will this affect Hanover High School?

It will not, as some have worried, prohibit discussing the existence of any of the “divisive concepts,” but only prohibit teaching that these ideas are correct. Social studies teachers will still be able to talk about what racism, sexism, and other systems of discrimination are. They can say that other people believe that a certain group is inherently superior, inferior, or should be treated differently, but cannot teach that this is true. If any student feels that a teacher has taught them that they should act in a discriminatory way they can file a lawsuit against the school, and the teacher can be disciplined.

So far, there have been no allegations of an infraction of this law at Hanover High School, but some teachers have already complained that this has impinged on their ability to educate students. Mr. Brennan, in the Social Studies department, has said that he now has to worry about how he presents certain topics, such as affirmative action, in case it looks like he is endorsing them rather than mentioning their existence.

Supporters say that this law is intended to protect from discrimination, but opponents say that in effect it enshrines discriminatory practices that may not be protected against under other laws.