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The State We’re In: Implementing Divisive Concepts Law

Published Tuesday Jul 20, 2021

Author JENNY WHIDDEN, Granite State News Collaborative

The State We’re In: Implementing Divisive Concepts Law

The State We’re In - “Divisive Concepts” Law With the signing of New Hampshire’s new state budget, several controversial measures are now law. One, known as the ‘Right to Freedom from Discrimination in Public Workplaces and Education,’ is creating confusion and concern. In this episode we hear from Gov. Sununu on what’s next and GSNC Reporter Jenny Whidden on reaction to the legislation.

Watch the full interview with Gov. Chris Sununu on NH PBS’s The State We’re In

Read the companion story:

The state budget provision that opponents say puts a chill on important conversations about race has been law for a few weeks, but community members are still looking for guidance on what they call unclear language. 

Educators and civil rights activists, among others, say as they await more information from the state, they are concerned the law is already leading to self-censorship in school curriculums, workplace diversity training and police implicit bias classes.

Chairwoman of the governor’s Advisory Council on Diversity and Inclusion, Ahni Malachi, said conversations are ongoing with Attorney General John Formella and the Department of Justice to develop guidance for state agencies, adding that the legislation will “not prohibit necessary conversations.”

“These conversations are still going on at the state level, so we will have much more information to share later on,” Malachi said in an email.

Early this week, Governor Sununu said Attorney General John Formella will release an FAQ document to answer common questions “in the next week or so.”

After initially stating he would veto earlier drafts of the legislation, Sununu signed the budget into law at the end of June, along with the provision commonly referred to as ‘divisive concepts.’ The move prompted the abrupt resignation of more than half of the Diversity Council, the former members citing concerns that the bill is fundamentally at odds with the Council’s mission to combat inequity and discrimination.

Sununu said the bill he originally opposed was “poorly written” and “very problematic,” but said the new law only enhances and strengthens the state’s anti-discrimination statute. He added that he wasn’t in a position to veto the $13 billion budget solely on account of the added language.

“The only thing that this amendment prohibits is discrimination, and racism and sexism in the classroom. That’s it,” Sununu said. “I think discrimination and racism is pretty darn simple, actually. It’s either there or it isn’t.”

The governor said the law does not limit curriculum, and discussions on implicit bias and civil rights history will be able to continue. 

According to the law, it is now illegal to teach in schools or governmental agencies the idea that an individual is racist, sexist or otherwise oppressive by virtue of their age, sex or any other identity — “whether consciously or unconsciously.” 

Supporters of the new law say the provision will strengthen New Hampshire’s race relations and protect everyone — including white people — from discrimination in schools and public workplaces. 

“All this simply says is you cannot go in and predetermine that because of a child’s race or their gender or anything, you can’t say that they’re inherently bad or inherently racist,” Sununu said.

With language in the budget that says violation of the law could result in “disciplinary sanction by the state board of education,” educators are carefully considering the bill, especially in public schools where teachers are crafting their curriculums for next fall.

“It's a bill that really sends a very scary message to educators across the state of New Hampshire. They could lose their licensure,” James Morse, Oyster River Cooperative School District Superintendent and former Diversity Council member, said.

Morse said the prevailing concern among superintendents across the state is what the bill means for educators, academic freedom and teaching “the true history of racism.”

“Certainly racism is one of the issues that has haunted our country from its inception,” he said. “To grow past that, we have to create an atmosphere where we can learn from the past and grow and become better people.”

As they await more information from the state, Oyster River administrators are looking for guidance from their own school attorneys, Morse said.

“Everybody is waiting to learn more about what this bill means. It’s hot off the presses. There's tremendous concern,” he said. “There's no clarity here other than it's scaring people.”

Devon Chaffee, executive director of the American Civil Liberties Union of New Hampshire and former Diversity Council member, said the ACLU is going to be ready to support educators as much as it can.

“Of course, we’re all really awaiting the guidance from the state to see if it provides any type of clarity about what this law does and doesn’t do,” Chaffee said.

Bow-Dunbarton superintendent Dean Cascadden said despite feeling concern that the legislation will have a chilling effect on certain topics, he's not worried his district’s curriculums will be in violation of the law.

“I’m a little less concerned after reading the text,” Cascadden said. “I’m not really sure now what the bill is trying to accomplish.”

Cascadden’s school district has an equity and diversity program that shows students “windows and mirrors” — through which children can reflect on their own culture and identity, as well as see and accept the experiences of others.

“I think people don’t want their children indoctrinated, but I don’t think we do that. I think we try to ask critical questions,” Cascadden said. “We ask people to examine their assumptions, examine what their background is and then ask the question, ‘This is another human being. Am I treating that person fairly?”

Dottie Morris, chief officer of diversity and multiculturalism at Keene State College and former Vice Chair of the Diversity Council, said while she thinks the legislation will have a larger impact on K-12 schools than on higher education, it could have an effect on diversity training for faculty and staff.

“There's a lot of anxiety and confusion,” Morris said. “I keep asking for clarification, and I don't have that. I'm not sure what impact it will have on colleges and universities.”

Next to the uncertainty surrounding the bill, Morris said one of her greatest concerns is the legislation’s potential impact on conversations about race.

While on the state’s Diveristy Council, Morris and the other members held about a dozen listening sessions throughout New Hampshire, hearing from different populations about their experiences with discrimination. One of the most common pieces of feedback the Council received was that there needs to be more diversity education, Morris said.

“A lot of people were pushing education,” she said. “They would talk about their experiences and how painful they were, and they saw it as a resolution to be able to have some of these conversations about race and racism and all of the other isms that are out there.”

Joseph Lascaze, who helped shape and lead cultural diversity classes for incoming police officers through the Police Standards and Training Council this year, said he feels hesitant to continue the classes in light of the new law. 

“It’s just a wet blanket,” Lascaze said. “There really is no clarity whatsoever on whether or not this training that we are doing that is so critical for New Hampshire law enforcement is allowed to continue.”

The classes included discussion of implicit bias and racial profiling, and highlighted the experiences of diverse people in New Hampshire, including people of color and members of the LGBTQ community.

“(The law) gives me serious pause to continue doing this work because if there is one member of law enforcement who does not agree with this training — to my understanding — this opens myself or PSTC up for lawsuits,” he said. “I do not want to be penalized or punished for sharing experiences either that I've been through or experiences of other Black and brown people in the communities in New Hampshire.”

Lascaze, a Smart Justice Organizer for the ACLU of New Hampshire, is also a member of the governor’s Commission on Law Enforcement Accountability, Community and Transparency or LEACT.

Earlier this month, members of LEACT requested an emergency meeting to discuss the “divisive concepts” legislation. That request was denied by Attorney General John Formella – who helped draft the language in the law – responding that the matter was not within the commission’s purview.

“Our legal team is currently reviewing the language. We’re still trying to make sense of it all,” Lascaze said. “The problem is that this law is already in effect. That is the problem. That means that there are conversations that are coming to stand stills right now in New Hampshire that could really benefit the people in our communities. While this law is in effect, we have to sit back and wait to see how this actually affects people, and I think that that’s backwards.”

Multiple organizations – including the state Business and Industry Association, the New Hampshire Municipal Association, the New Hampshire Providers Association, and numerous school boards – have opposed the law.

NHMA Executive Director Margaret Byrnes said there’s been a fair amount of discussion among local officials surrounding the legislation. She said persisting concerns may cause some municipalities to pause in their diversity training efforts.

“We are very anxiously awaiting the attorney general issuing some kind of opinion or interpretation,” Byrnes said. “That is very much needed to abate fear and to make sure there is not a moratorium on discussions about race.”

BIA came out against the legislation in April when the provision was first added to the budget bill, citing concerns that it would ban diversity training among businesses that contract with the state. The language that included state contracts has since been removed.

“The BIA is opposed to it still, and I know that many private sector companies who were initially concerned remain opposed,” David Juvet, BIA Senior Vice President of Public Policy, said. 

While businesses are no longer concerned the provision will directly affect them, Juvet said the fear is that it could deter businesses from relocating to the Granite State, particularly minority entrepreneurs. 

“I think it could impact millennials wanting to relocate to New Hampshire because I think as a general rule they have heightened sensitivity to diversity and systemic racism,” Juvet said. “This type of language is not helpful in demonstrating that New Hampshire is open to those types of discussions.”

These articles are being shared by partners in The Granite State News Collaborative as part of our race and equity project. 

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