Federal judge slaps down state’s vague law that may have banned teaching Toni Morrison’s “Beloved”

In a victory for free speech advocates in the Live Free or Die state, a federal court ruled Tuesday that New Hampshire’s classroom censorship law, which restricts LGBTQ+ and anti-racist discussions in schools, is unconstitutional.

The decision is the first in the nation to strike down a state law that prohibits teaching so-called “woke” ideology in grade schools, according to the American Civil Liberties Union.

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The vaguely worded House Bill 2, passed in 2021, amended the state’s education and nondiscrimination laws to bar instruction that any group of people is inherently racist, sexist, or oppressive, and that any group of people is superior due to their race, sex, sexual orientation, or gender identity.

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The law was widely seen as an attempt to erase LGBTQ+ identities in schools and absolve past racist behavior by other groups simply by foreclosing the subjects, in the same way that “Don’t Say Gay” and other anti-woke legislation has functioned in dozens of other states.

After the law’s passage, a coalition including the New Hampshire ACLU, teachers’ unions, and LGBTQ +and disability rights advocates sued the state. The coalition included a teacher who worried that he could lose his teaching license for teaching Beloved, a 1987 novel by Black award-winning author Toni Morrison, which discusses the hardships of a Black U.S. slave escaping white slave hunters in the mid-1800’s.

House Bill 2 clearly violated speech protections, according to the ACLU, which joined other organizations to represent teachers and advocacy groups challenging the statute. 

The amendments to the state’s education and nondiscrimination laws “actively discouraged public school teachers from teaching and talking about race, gender, sexual orientation, disability, and gender identity inside and outside the classroom,” the ACLU’s New Hampshire affiliate said in a statement.

U.S. District Court Judge Paul J. Barbadoro agreed. His ruling concluded the law was so unclear and vague that it failed to provide necessary guidance to educators about what they could and could not include in their courses, and that it invited arbitrary and discriminatory enforcement — up to and including the loss of teaching licenses.

“The Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement,” Judge Barbadoro ruled.  “Thus, the Amendments violate the 14th Amendment to the U.S. Constitution.” The 14th Amendment says that all citizens must be treated equally under the law.

The court’s ruling added, “All told, the banned concepts speak only obliquely about the speech that they target and, in doing so, fail to provide teachers with much-needed clarity as to how the Amendments apply to the very topics that they were meant to address.”

“This lack of clarity sows confusion and leaves significant gaps that can only be filled in by those charged with enforcing the Amendments, thereby inviting arbitrary enforcement,” Judge Barbadoro wrote in his decision. He added that the law placed “viewpoint-based restrictions on speech” and “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.”

 A spokesperson for the state Attorney General’s office said state officials are “currently reviewing the court’s order and will consider next steps including whether to appeal.”

Megan Tuttle, president of the National Education Association in New Hampshire, said truthful and accurate information for students builds critical thinking skills that are foundational to their success in all facets of life.

“But New Hampshire’s ‘banned concepts’ law stifled New Hampshire teachers’ efforts to provide a true and honest education,” Tuttle said. “Students, families, and educators should rejoice over this court ruling which restores the teaching of truth and the right to learn for all Granite State students.”

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