“The court ultimately found the ‘divisive concepts’ laws to be fatally vague in three ways.” (Getty Images)
The recent decision by New Hampshire’s federal district court in Local 8027 v. Edelblut, striking down the state’s “divisive concepts” laws, should not have been a surprise. As Judge Paul Barbadoro explained in his written opinion, the laws simply could not be squared with the basic tenets of due process.
The amended anti-discrimination and education laws, enacted in 2021, sought to regulate the teaching of what the Legislature referred to as “divisive concepts” relating to race and gender. Such concepts included the superiority of one person over another based upon either person’s race, gender, sexual orientation, or other inherent characteristic. Educators brought suit, challenging the laws on free speech and due process grounds – and it was on the shoals of the latter that the laws ran aground.
As applied to laws that purport to ban certain activity or conduct, due process requires, at a minimum, notice to individuals of the specific actions or conduct the state is seeking to prohibit. When faced with a challenge based upon vagueness, courts ask whether the law at issue is framed in language so imprecise that, as Judge Barbadoro put it, “persons of average intelligence would have no choice but to guess at its meaning and modes of application.” A correlative problem is the extent to which imprecise statutory language may lead to arbitrary and discriminatory enforcement – in other words, whether a vaguely worded statute gives law enforcement too much discretion to define violations of the law.
As Judge Barbadoro noted, the problem of vagueness is exacerbated when the law in question concerns expressive activity. This was the case with the divisive concepts laws. “Uncertain meanings,” the U.S. Supreme Court stated more than half a century ago in Terminiello v. Chicago, “inevitably lead citizens to steer far wider of the unlawful zone than if boundaries of the forbidden areas were clearly marked.” Vague rules, the court continued, lead to the kind of self-censorship that “is inimical to our democracy.”
The possibility of self-censorship was more pronounced in Local 8027 in light of the potential consequences for a teacher alleged to have taught one of the restricted concepts. Among other possibilities, the state could seek to have their teaching credentials revoked – an outcome potentially more serious than certain criminal sanctions.
The court ultimately found the “divisive concepts” laws to be fatally vague in three ways: first, they did not provide “fair notice as to the concepts that teachers” could not teach. Second, the laws did not specify when a classroom discussion that implicated a prohibited concept would violate the law. Finally, the laws did not provide the guidance necessary for teachers to determine when their speech outside the workplace would fall within the statutory prohibitions.
The New Hampshire Bulletin reported that, in response to the ruling in Local 8027, lawmakers said they would “redouble efforts” to enact a new law, one that presumably would address the due process deficiencies in the laws just struck down.
Setting aside the utility of “divisive concepts” as a political issue, designing a law that satisfies due process may not be an easy task. Part of the problem, as Judge Barbadoro recognized, is that the Legislature sought to eliminate the teaching of “divisive concepts” obliquely and not directly, casting its goal as an anti-discrimination effort. That approach may have been due to the majority’s inability to reach agreement on what specific concepts it believed should be prohibited from classroom teaching and discussion.
At a certain level, this case recalls another effort at state censorship. In Texas v. Johnson, the U.S. Supreme Court held that states cannot prohibit the expressive activity of burning the United States flag in order to promote preservation of the flag as a symbol of national unity. As the court put it, “[t]he way to preserve the flag’s special role is not to punish those who feel differently [about that role]. It is to persuade them that they are wrong.”
So too here: The way to preserve whatever values one believes may be threatened by “divisive concepts” regarding race and gender is not to ban even the mention of such concepts, but to engage opponents in debates about them in the marketplace of ideas.
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