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

2023 DNH 005

• Court: District Court, D. New Hampshire
• Decided: January 12, 2023
• Docket: 21-cv-1077-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COUR T FOR THE DISTRICT OF NEW HAMPSHIRE

Lo c al 8027, AFT-N.H., AFL-CIO, et al.

v. Case No. 21-cv-1077-PB Opinion No. 2023 DNH 005 Frank Edelblut, Co mmissio ner, N.H. Department o f Educ atio n, et al.

MEMOR ANDUM AND OR DER

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;

1 The parties cannot agree on a name for the new laws. Plaintiffs call them “divisive concept” or “banned concept” laws. Defendants refer to them as “antidiscrimination provisions.” Rather than pick a side on this inconsequential point, I refer to the new laws as the “education and antidiscrimination amendments” or the “amendments.”

2 (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

3 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

2 The education and antidiscrimination amendments use several different terms to describe the speech that they prohibit. For ease of reference, I refer to the prohibited types of expression collectively as “teaching or advocacy.”

4 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,

5 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

6 parents of children enrolled in New Hampshire’s public schools, and Local

8027 of the American Federation of Teachers-New Hampshire, a labor union

that represents approximately 3,400 public school teachers, school support

staff, city and town employees, police officers, library employees, and higher

education faculty in the state (collectively, “AFT plaintiffs”). The second

group includes two diversity, equity, and inclusion school administrators and

the National Education Association-New Hampshire, a professional

association representing more than 17,000 educators in the state (collectively,

“NEA plaintiffs”). The two actions were later consolidated.

The AFT plaintiffs allege that the amendments violate their First

Amendment right to free speech. Both complaints assert that the new laws

are impermissibly vague in violation of the Fourteenth Amendment’s Due

Process Clause.

II. STANDARD OF R EVIEW

To survive a motion to dismiss for failure to state a claim, a plaintiff

must allege facts sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible if it pleads

“factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id.

7 In testing a complaint’s sufficiency, I employ a two-step approach. See

Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, I

screen the complaint for statements that “merely offer legal conclusions

couched as fact or threadbare recitals of the elements of a cause of action.” Id.

(cleaned up). A claim consisting of little more than “allegations that merely

parrot the elements of the cause of action” may be dismissed. Id. Second, I

credit as true all of the plaintiff’s non-conclusory factual allegations and the

reasonable inferences drawn from those allegations, and then determine if

the claim is plausible. Id. The plausibility requirement “simply calls for

enough fact to raise a reasonable expectation that discovery will reveal

evidence” of illegal conduct. Twombly, 550 U.S. at 556. The “make-or-break

standard” is that those allegations and inferences, “taken as true, must state

a plausible, not a merely conceivable, case for relief.” Sepúlveda-Villarini v.

Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

III. ANALYSIS

Defendants contend that the consolidated complaints must be

dismissed because the education and antidiscrimination amendments do not

on their face violate either the First Amendment’s Free Speech Clause or the

Fourteenth Amendment’s Due Process Clause. Plaintiffs, unsurprisingly,

disagree.

8 A. First Amend ment Claim

The AFT plaintiffs base their First Amendment claim on both their

claimed right to speak as teachers and their children’s corresponding right to

receive information as public school students. I turn first to the claims they

bring as teachers.

1. Teachers’ First Amendment Claim

Defendants’ challenge to plaintiffs’ claim as teachers can be simply

stated: (1) plaintiffs are government employees; (2) the education and

antidiscrimination amendments only restrict curricular speech; (3) curricular

speech is government speech; and (4) the First Amendment does not protect

speech by government employees when, as is the case here, they speak for the

government rather than as citizens. Defendants base this argument on the

Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), where

the Court considered “whether the First Amendment protects a government

employee from discipline based on speech made pursuant to the employee’s

official duties.” Id. at 413. In answering that question, the Court built upon

its prior decisions in Pickering v. Board of Education of Township High

School District 205, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138

(1983). As the Court explained the analytical framework:

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires

9 determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises.”

Garcetti, 547 U.S. at 418 (cleaned up). 3

When an employee’s speech may be protected because the employee is

speaking as a citizen on a matter of public concern, Garcetti, Connick and

Pickering instruct that a court must “attempt to balance the value of the

employee’s speech — both the employee’s own interests and the public’s

interest in the information the employee seeks to impart — against the

employer’s legitimate government interest in preventing unnecessary

disruptions and inefficiencies in carrying out its public service mission.”

Bruce v. Worcester Reg’l Transit Auth., 34 F.4th 129, 137 (1st Cir. 2022)

(cleaned up).

Garcetti involved speech by a deputy district attorney that the Court

concluded was unprotected because he was speaking as a government

3 The Supreme Court later qualified its holding in Garcetti by stating that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” Lane v. Franks, 573 U.S. 228, 240 (2014). In a recent case, the First Circuit interpreted both Garcetti and Lane to require courts to determine “whether an employee spoke ‘pursuant to their official duties’” by focusing on “whether the speech was ‘part of what’ the employee was ‘employed to do’ rather than merely whether the employee engaged in the speech ‘at work.’” Bruce v. Worcester Reg’l Transit Auth., 34 F.4th 129, 136 (1st Cir. 2022) (quoting Garcetti, 547 U.S. at 420, 421).

10 employee rather than as a citizen. 547 U.S. at 422-24. Although that case did

not concern curricular speech by public primary and secondary school

teachers, defendants contend that Garcetti supplies the standard that I must

apply when ruling on plaintiffs’ First Amendment claim.

Plaintiffs argue Garcetti does not apply here because teachers have a

First Amendment right to academic freedom that differentiates them from

other public employees, at least when they are engaged in teaching. To

support their position, they point out that the Supreme Court has not

expressly extended Garcetti to curricular speech and argue that the

controlling precedent on that issue is the First Circuit’s earlier decision in

Ward v. Hickey, 996 F.2d 448 (1st Cir. 1993). I disagree.

In Ward, a high school teacher was denied tenure after she discussed

the abortion of fetuses with Down syndrome in her ninth-grade biology class.

Id. at 450. The First Circuit analyzed the teacher’s free speech claim by

drawing on Supreme Court precedent addressing student speech. See id. at

452 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506

(1969); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988)).

Adopting the Tinker-Hazelwood test, the court held that a school may restrict

a teacher’s curricular speech if “(1) the regulation is reasonably related to a

legitimate pedagogical concern, and (2) the school provided the teacher with

notice of what conduct was prohibited.” Id. (cleaned up).

11 Ward predates Garcetti by more than a decade, and it does not discuss

Pickering or Connick. Significantly, the First Circuit has not relied on Ward

in any subsequent case for the proposition that plaintiffs advance here, not

even in a case involving “curricular discretion” where the district court had

relied on Ward. See Griswold v. Driscoll, 625 F. Supp. 2d 49, 60 (D. Mass.

2009), aff’d, 616 F.3d 53, 60 (1st Cir. 2010). Instead, the First Circuit

affirmed the district court in Griswold on alternative grounds, holding that

the challenged curriculum guide “did not implicate the First Amendment.”

616 F.3d at 60. In another decision decided after Ward but prior to Garcetti,

the First Circuit similarly rejected a curricular speech claim by a student

teacher by using Pickering and Connick rather than Ward. See Hennessy v.

City of Melrose, 194 F.3d 237, 248-49 (1st Cir. 1999). Accordingly, I am not

persuaded by plaintiffs’ contention that Ward rather than Pickering, Connick

and Garcetti supply the standard of review in this case.

Plaintiffs alternatively argue that Garcetti does not apply to curricular

speech claims even if such claims are governed by Pickering and Connick

because the Garcetti majority expressly declined to consider in that case

“whether the analysis we conduct today would apply in the same manner to a

case involving speech related to scholarship or teaching.” Garcetti, 547 U.S.

at 425. A careful reading of Garcetti, however, leaves no doubt that the

Court’s concerns there were directed primarily at academic freedom claims by

12 college and university faculty rather than public primary and secondary

school teachers. We know this to be true because the majority’s comment

responds expressly to Justice Souter’s concern in dissent that the majority

opinion might “imperil First Amendment protection of academic freedom in

public colleges and universities, whose teachers necessarily speak and write

pursuant to official duties.” Id. at 438 (Souter J., dissenting).

In Garcetti’s wake, several circuit courts have recognized that public

college and university professors retain substantial academic freedom under

the First Amendment while engaged in teaching and scholarship. See, e.g.,

Meriwether v. Hartop, 992 F.3d 492, 505 (6th Cir. 2021); Buchanan v.

Alexander, 919 F.3d 847, 852-53 (5th Cir. 2019); Demers v. Austin, 746 F.3d

402, 411 (9th Cir. 2014); Adams v. Trs. of Univ. of N.C.-Wilmington, 640 F.3d

550, 564-65 (4th Cir. 2011). 4 But the circuits that have considered whether

public primary and secondary school teachers enjoy similar freedom to

determine what they will teach have concluded that their curricular speech is

4 The Ninth Circuit held in Demers that Garcetti does not apply to the curricular speech of public university professors, but the opinion includes dicta that could be read to also extend similar protection to public high school teachers. See 746 F.3d at 412-13. Demers does not discuss the Ninth Circuit’s earlier decision in Johnson v. Poway Unified School District, which holds that the curricular speech of public primary and secondary teachers is not protected by the First Amendment. See 658 F.3d 954, 966-70 (9th Cir. 2011). Thus, I read these opinions together to exempt only curricular speech by public college and university professors from Garcetti’s holding.

13 not protected by the First Amendment. See Johnson v. Poway Unified Sch.

Dist., 658 F.3d 954, 966-70 (9th Cir. 2011); Evans-Marshall v. Bd. of Ed. of

Tipp City Extended Village Sch. Dist., 624 F.3d 332, 342 (6th Cir. 2010);

Mayer v. Monroe Cnty. Comm. Sch. Corp., 474 F.3d 477, 479-80 (7th Cir.

2007); cf. Lee v. York Cnty. Sch. Div., 484 F.3d 687, 694 n.11, 700 (4th Cir.

2007) (declining to apply Garcetti but concluding under Pickering and

Connick that a teacher’s speech was not protected by the First Amendment).

The reasons for treating curricular speech by college and university

faculty differently from similar speech by primary and secondary school

teachers are compelling. The Supreme Court has long recognized that

“universities occupy a special niche in our constitutional tradition.” Grutter v.

Bollinger, 539 U.S. 306, 329 (2003); see also Sweezy v. New Hampshire, 354

U.S. 234, 249-55 (1957) (plurality opinion); Keyishian v. Bd. of Regents of

Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (recognizing that a university

“classroom is peculiarly the ‘marketplace of ideas’”). In such environments,

“academic freedom . . . is of transcendent value to all of us and not merely to

the teachers concerned.” Keyishian, 385 U.S. at 603. In short, academic

freedom concerns are paramount on college and university campuses.

Public primary and secondary school teachers, by contrast, are hired to

teach the curriculum developed by the politically accountable branches of

state and local government. Individual primary and secondary school

14 teachers simply aren’t given the latitude to teach whatever they believe

students need to hear. As the Seventh Circuit observed in Mayer:

A teacher hired to lead a social-studies class can’t use it as a platform for a revisionist perspective that Benedict Arnold wasn’t really a traitor, when the approved program calls him one; a high-school teacher hired to explicate Moby-Dick in a literature class can’t use Cry, The Beloved Country instead, even if Paton’s book better suits the instructor’s style and point of view; a math teacher can’t decide that calculus is more important than trigonometry and decide to let Hipparchus and Ptolemy slide in favor of Newton and Leibniz.

474 F.3d at 479.

College and university faculty also teach their classes in a very

different environment from the world of primary and secondary education.

No one is required to attend a public college or university, but primary and

secondary school education is compulsory, and most families lack either the

financial means or the spare time to satisfy the requirement through private

schools or home schooling. Id. While local school boards may have good

reasons to grant teachers substantial autonomy in choosing how best to

implement curricular standards, parents, students, and teachers will

inevitably disagree about what should be taught in public school classrooms.

When disagreements arise, they generally are better resolved by politically

accountable officials than by federal judges. See Evans-Marshall, 624 F.3d at

341. Accordingly, I agree with defendants that Garcetti applies and that the

15 First Amendment does not protect the curricular speech of primary and

secondary school teachers.

For defendants, that ends the matter. Because they contend that the

education and antidiscrimination amendments only apply to curricular

speech, they argue that I need not consider plaintiffs’ ancillary claim that the

amendments also impermissibly restrict their extracurricular speech. I

disagree. RSA § 193:40, I provides that “[n]o pupil in any public school in this

state shall be taught, instructed, inculcated or compelled to express belief in,

or support for,” a banned concept. As plaintiffs argue, this provision can

plausibly be read to cover interactions with pupils outside the classroom and

even beyond the school grounds. After all, a pupil in a public school may

interact with a teacher in a school hallway, schoolyard, lunchroom, or library,

not to mention during extracurricular activities that take place on or off

school grounds. Even the enforcing agencies’ guidance in the FAQs recognize

the arguably broad scope of the amendments by construing them to apply to

extracurricular activities. See Doc. No. 36-8 at 2 (“The prohibitions apply to

all activities carried out by public schools in their role as public schools,

including extra-curricular activities that are part of the public school’s

work.”). To underscore the point, the only acknowledged exception in the

FAQs for activities that take place on a public school’s property is for third-

party events or activities, such as voluntary after-school programs

16 administered by outside organizations. See id. Thus, I agree with plaintiffs

that the amendments arguably prohibit any advocacy of a banned concept

that a teacher directs at a student, even outside the confines of a classroom.

Because the education and antidiscrimination amendments are

susceptible to an interpretation that encompasses extracurricular speech,

they plausibly restrict teachers’ speech as private citizens. See, e.g., Kennedy

v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2424-25 (2022) (holding that a high

school coach who engaged in prayer while on school property and in the

immediate vicinity of students did not engage in government speech). As to

such speech, Garcetti indicates that the court should apply the Pickering-

Connick balancing test. Defendants have not analyzed plaintiffs’

extracurricular speech claim under that test. Accordingly, I decline to dismiss

the AFT plaintiffs’ First Amendment claim to the extent it is based on the

theory that the education and antidiscrimination amendments restrict their

extracurricular speech.

2. Students’ First Amendment Claim

Two of the AFT plaintiffs have children who attend public schools in

New Hampshire. Although they did not expressly allege a distinct First

Amendment claim on behalf of their children, they left no doubt in their

objection to defendants’ motion to dismiss that they believe that the

education and antidiscrimination amendments also violate their children’s

17 right to free speech. Defendants object to what they see as an improper

attempt by plaintiffs to add a claim that is not asserted in their complaint.

I do not doubt that a parent can assert a First Amendment claim on

behalf of a child either as a “general guardian” pursuant to Fed. R. Civ. P.

17(c)(1), or as a “next friend,” as is typically done in New Hampshire when a

parent represents a child in a state court proceeding, see, e.g., Roberts v.

Mills, 85 N.H. 517, 519 (1932). Plaintiffs, however, did not sue in either

capacity. Nor did they include a distinct First Amendment claim on behalf of

their children in their complaint. Accordingly, if plaintiffs want to sue on

behalf of their children, they must file an amended complaint asserting the

children’s interests in a distinct claim for relief. 5

5 In allowing plaintiffs to amend their complaint, I do not mean to suggest that the First Amendment gives plaintiffs’ children any greater control over a school’s curriculum than it gives to teachers. Although the First Amendment protects a recipient’s right to receive information from a willing speaker, Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976), a recipient’s right to receive information is derivative of the speaker’s right to speak. See Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) (“the right to receive ideas follows ineluctably from the sender’s First Amendment right to send them”); Doe ex rel. Doe v. Governor of N.J., 783 F.3d 150, 155 (3rd Cir. 2015); Ind. Right to Life, Inc. v. Shepard, 507 F.3d 545, 549 (7th Cir. 2007); Pa. Family Inst., Inc. v. Black, 489 F.3d 156, 165 (3rd Cir. 2007); In re Application of Dow Jones & Co., 842 F.2d 603, 608 (2d Cir. 1988). Should plaintiffs seek to amend their complaint to add a First Amendment claim on behalf of their children, defendants remain free to argue that a child’s First Amendment right to receive information about a banned concept is no broader than a teacher’s right to speak about the concept.

18 B. Vagueness Challenge

Plaintiffs also argue that the education and antidiscrimination

amendments are unconstitutionally vague, both facially and as applied to

educators. Construing the claim as a facial vagueness challenge only,

defendants argue that it cannot succeed for several reasons. First, defendants

contend that the amendments are not vague in all of their applications, the

standard that they believe should apply in this case. But even if a less

stringent vagueness test applies, defendants argue that the amendments

pass muster because they provide a discernible standard of conduct and

protect against arbitrary or discriminatory enforcement.

1. Classifying Plaintiffs’ Vagueness Challenge

The complaints purport to assert both facial and as-applied vagueness

challenges. Plaintiffs confirmed at oral argument that they are presenting

both claims and that, in its current form, their challenge is as applied in the

sense that they seek to invalidate the statutory prohibitions as applied to

educators. Defendants, in a conclusory manner, construe the vagueness claim

to be facial only, without addressing plaintiffs’ nuanced as-applied challenge.

Generally, a facial challenge raises constitutional defects as to the

terms of the statute itself, independent of its application to a plaintiff’s

particular set of circumstances. See United States v. Playboy, 529 U.S. 803,

834 n.3 (2000) (Scalia, J., dissenting). By contrast, an as-applied challenge is

19 focused on whether the statute’s application to a plaintiff′s actual or proposed

conduct is unconstitutional. See id. Plaintiffs who bring a prospective as-

applied vagueness challenge typically must identify specific activities that

they plan to engage in but that are arguably barred. See Holder v.

Humanitarian Law Project, 561 U.S. 1, 18-25 (2010); Copeland v. Vance, 893

F.3d 101, 112 (2d Cir. 2018). “The challenger cannot instead rely on

hypothetical situations in which the statute could not validly be applied.”

Copeland, 893 F.3d at 113; see also Humanitarian Law Project, 561 U.S. at

22 (refusing to analyze “hypothetical situations designed to test the limits” of

statutory prohibitions).

The complaints here are silent as to any particular advocacy that

plaintiffs would pursue but for fear of running afoul of the statutory

prohibitions. Rather, plaintiffs seek to redefine the nature of an as-applied

challenge to encompass a facial challenge to a statute as applied to a subset

of individuals whom it affects. Although there is reason to doubt plaintiffs’

position that they have adequately pleaded an as-applied challenge,

defendants’ motion to dismiss does not present a developed argument

regarding the viability of such a claim. Because the issue has not been

adequately briefed, I deny defendants’ motion to dismiss plaintiffs’ as-applied

vagueness claim without prejudice to their ability to argue at a later stage

that the claim is without merit.

20 2. Applicable Standard for Plaintiffs’ Facial Vagueness Claim

The parties dispute the appropriate standard for evaluating plaintiffs’

facial vagueness challenge. Defendants argue that plaintiffs must prove that

the amendments are vague in all of their applications, citing Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).

Plaintiffs disagree, pointing to the Supreme Court’s more recent rejection of

that standard in Johnson v. United States, 576 U.S. 591 (2015), Sessions v.

Dimaya, 138 S. Ct. 1204 (2018), and United States v. Davis, 139 S. Ct. 2319

(2019).

The Supreme Court has not taken a consistent position over time on

the standard a court should use when evaluating facial vagueness challenges

outside of the First Amendment context. See generally Richard H. Fallon, Jr.,

As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L.

Rev. 1321 (2000). In Flipside, the Court set a high bar for such challenges: a

plaintiff had to show that the statute was “impermissibly vague in all of its

applications.” 455 U.S. at 495. As Justice Thomas noted in his dissent in

Johnson, this standard “is simply an application of the broader rule”

espoused in United States v. Salerno, 481 U.S. 739 (1987), that “a statute is

facially unconstitutional only if ‘no set of circumstances exists under which

the Act would be valid.’” Johnson, 576 U.S. at 636 n.2 (Thomas, J.,

dissenting) (quoting Salerno, 481 U.S. at 745). Because plaintiffs must show

21 under this standard that a statute has no valid applications, a single clear

application of the law would defeat a facial vagueness challenge under this

test. As the Second Circuit has noted, “[t]his standard effectively eliminates

facial challenges outside of the First Amendment context that could not also

be brought as an as-applied challenge, since any law that is unconstitutional

in every set of circumstances is also necessarily unconstitutional when

applied to any plaintiff.” Dickerson v. Napolitano, 604 F.3d 732, 743-44 (2d

Cir. 2010).

About a decade after Flipside was decided, a plurality of the Supreme

Court in City of Chicago v. Morales challenged the notion that the Salerno

standard applies in facial vagueness cases. See 527 U.S. 41, 55 n.22 (1999)

(Stevens, J., with Souter, J. and Ginsburg, J., concurring) (“To the extent we

have consistently articulated a clear standard for facial challenges, it is not

the Salerno formulation, which has never been the decisive factor in any

decision of this Court, including Salerno itself . . . .”). Although several courts

of appeals subsequently questioned the continued vitality of the “no set of

circumstances” standard, lower courts continued to apply it after Morales.

See, e.g., Alphonsus v. Holder, 705 F.3d 1031, 1042 n.11 (9th Cir. 2013);

United States v. Comstock, 627 F.3d 513, 518 (4th Cir. 2010).

More recently, however, the Supreme Court has decisively rejected the

notion that clarity in some applications can save a statute from a facial

22 vagueness attack. In a trio of facial challenges not involving the First

Amendment, the Court refused to adopt the view that “a statute is void for

vagueness only if it is vague in all its applications.” Johnson, 576 U.S. at 602;

accord Dimaya, 138 S. Ct. at 1214 n.3; see also Davis, 139 S. Ct. at 2336. The

residual clauses in the statutes at issue in those cases required judges to

determine whether an offense qualified as a violent felony or a crime of

violence by using a categorical approach, divorced from a defendant’s actual

conduct. The Court struck down all three statutes on vagueness grounds.

In Johnson, the Court considered a facial challenge to the residual

clause of the Armed Career Criminal Act (ACCA), which imposed enhanced

penalties for offenders with prior convictions for a “violent felony,” defined to

include any felony that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 576 U.S. at 593-94 (cleaned up).

The Court concluded that the clause was unconstitutionally vague even

though there were some “straightforward cases” that clearly fell within its

scope. See Id. at 602-03. In doing so, the Court acknowledged that some of its

opinions have used the “vague in all applications” language that would have

mandated a different result. See id. But, the Court concluded, “our holdings

squarely contradict the theory that a vague provision is constitutional merely

because there is some conduct that clearly falls within the provision’s grasp.”

Id. at 602. The Court cited two prior holdings to illustrate the point:

23 For instance, we have deemed a law prohibiting grocers from charging an “unjust or unreasonable rate” void for vagueness — even through charging someone a thousand dollars for a pound of sugar would surely be unjust and unreasonable. We have similarly deemed void for vagueness a law prohibiting people on sidewalks from “conduct[ing] themselves in a manner annoying to persons passing by” — even though spitting in someone’s face would surely be annoying.

Id. at 602-03 (quoting United States v. L. Cohen Grocery Co., 255 U.S. 81, 89

(1921); Coates v. Cincinnati, 402 U.S. 611, 611 (1971)). “These decisions,” the

Court reasoned, “refute any suggestion that the existence of some obviously

risky crimes establishes the residual clause’s constitutionality.” Id. at 603.

Further, the Court observed that the “supposed requirement of vagueness in

all applications is not a requirement at all, but a tautology: If we hold a

statute to be vague, it is vague in all its applications (and never mind the

reality).” Id. Because the ACCA’s residual clause “produce[d] more

unpredictability and arbitrariness than the Due Process Clause tolerates,” id.

at 598, the Court invalidated it in its entirety, even as to “straightforward

cases.” Id. at 602-03. In his dissent, Justice Thomas defended Flipside’s

“vague in all applications” standard as an extension of Salerno’s “no set of

circumstances” test and suggested that the majority was carving out an

exception to that rule in facial vagueness cases. See id. at 636 & n.2 (Thomas,

J., dissenting).

24 In Dimaya, the Supreme Court relied on Johnson to strike down as

facially vague a similarly worded residual clause in an immigration statute

that authorized the removal of aliens convicted of “a crime of violence.” See

138 S. Ct. at 1213-16. Dissenting again, Justice Thomas reiterated his view

that “a facial challenge requires a statute to be vague ‘in all applications,’”

but he acknowledged that Johnson “weakened” that principle. Id. at 1250

(Thomas, J., dissenting). In response, the majority confirmed that “Johnson

made clear that our decisions ‘squarely contradict the theory that a vague

provision is constitutional merely because there is some conduct that clearly

falls within the provision’s grasp.’” Id. at 1214 n.3 (majority opinion) (quoting

Johnson, 576 U.S. at 602).

In the last installment of the trilogy, the Supreme Court invalidated on

facial vagueness grounds the residual clause of a criminal statute that

authorized enhanced penalties for certain firearms offenses. See Davis, 139 S.

Ct. at 2336. Without expressly reiterating its rejection of the “vague in all

applications” standard, the Court in Davis endorsed its approach in Johnson

and Dimaya and held that the statute’s categorical approach was void for

vagueness. See id. at 2325-36.

At least three circuit courts have analyzed the impact of Johnson and

its progeny on facial vagueness challenges. The Seventh and Ninth Circuits

have interpreted those cases as “put[ting] to rest the notion — found in any

25 number of pre-Johnson cases — that a litigant must show that the statute in

question is vague in all of its applications in order to successfully mount a

facial challenge.” United States v. Cook, 914 F.3d 545, 553 (7th Cir.), vacated

on other grounds, 140 S. Ct. 41 (2019); see Guerrero v. Whitaker, 908 F.3d

541, 544 (9th Cir. 2018) (“[W]e [previously] observed that the ‘no set of

circumstances’ standard was subject to some doubt but that we would

continue to apply that standard until a majority of the Supreme Court directs

otherwise. That day has come. Johnson and Dimaya expressly rejected the

notion that a statutory provision survives a facial vagueness challenge

merely because some conduct clearly falls within the statute’s scope.”)

By contrast, the Second Circuit has limited the Johnson line of cases to

their “exceptional” facts. See United States v. Requena, 980 F.3d 30, 41-42

(2d Cir. 2020), cert. denied sub nom., Raymond v. United States, 141 S. Ct.

2761 (2021). In Requena, that court held that “vague in all applications”

continues to be the default rule in facial vagueness cases with three limited

exceptions: the First Amendment context, criminal laws lacking a scienter

requirement, and Johnson-type cases where the statute calls for a categorical

approach. See id. at 39-40. In doing so, the Second Circuit held “that

Johnson’s license to strike down a ‘criminal statute . . . as facially vague even

where it has some valid applications’ extends only to the ‘exceptional

26 circumstances’ present in that case and its progeny.” Id. at 42 (quoting

Copeland, 893 F.3d at 111 n.2). Thus, the Second Circuit has narrowly read

Johnson’s rejection of the “vague in all applications” standard as limited to

the residual clause of the ACCA and its functional equivalents.

I agree with the Seventh and Ninth Circuits that the Johnson trio

heralded a more meaningful shift in the void for vagueness doctrine than the

Second Circuit recognized. In those cases, the Supreme Court rejected the

language in Flipside and Salerno that the mere existence of some clear

application can save a statute from unconstitutional vagueness. The Court

did not tie the demise of that standard to the facts of those cases. Instead, it

unequivocally rejected the notion that its holdings support the view that

clarity in some instances is enough to survive a vagueness challenge.

Moreover, the cases cited in Johnson to support its abandonment of the

“vague in all applications” standard did not concern categorical applications

of law such that the Court’s discussion in Johnson could be construed as

limited to that context. See Coates, 402 U.S. at 611; L. Cohen Grocery Co.,

255 U.S. at 89. Therefore, the Supreme Court’s rejection of the “vague in all

applications” standard was in no way tethered to the facts in Johnson. And if

any doubt remained after Johnson, it was dispelled in Dimaya, when the

Court plainly stated that Johnson had rejected the “vague in all applications”

standard as inconsistent with its holdings. See Dimaya, 138 S. Ct. at 1214

27 n.3. Because the Supreme Court’s rationale in the Johnson line of cases was

carefully considered and not expressly limited to the facts of those cases, it is

binding on lower courts. Cf. United Nurses & Allied Pros. v. Nat’l Lab. Rels.

Bd., 975 F.3d 34, 40 (1st Cir. 2020) (explaining that lower courts are “bound

by the Supreme Court’s considered dicta”) (cleaned up).

In support of their view that the “vague in all applications” standard

remains viable post-Johnson, defendants cite to the First Circuit’s recent

decision in Frese v. Formella, 53 F.4th 1 (1st Cir. 2022). That case challenged

New Hampshire’s criminal defamation statute on First Amendment and

vagueness grounds. Id. at 5. In setting forth background principles applicable

to the vagueness claim, the court in Frese cited Salerno for the proposition

that a successful facial vagueness challenge requires a showing “that no set

of circumstances exists under which the [statute] would be valid.” Id. at 7

(citing Dutil v. Murphy, 550 F.3d 154, 160 (1st Cir. 2008) (quoting Salerno,

481 U.S. at 745)). Because the case arose in the First Amendment context,

however, the court in Frese did not apply that standard. Rather, it

determined that the statute in question passed muster because it provided

adequate notice and meaningful enforcement guidelines. See id. at 7-11. In

other words, the fact that some conduct clearly fell within the provision’s

scope was not the reason the statute survived constitutional scrutiny.

Considering that the court’s brief mention of the Salerno standard played no

28 part in the disposition of the case, which gave the court no occasion to

consider the impact of the Johnson line of cases on that standard, it does not

bind lower courts. See Rossiter v. Potter, 357 F.3d 26, 31 (1st Cir. 2004).

Although not raised by the parties, I am also mindful that, post-

Johnson, the Supreme Court has continued to cite to Salerno’s “no set of

circumstances” test when addressing other types of facial constitutional

challenges. See Ams. for Prosp. Found. v. Bonta, 141 S. Ct. 2373, 2387 (2021);

City of L.A. v. Patel, 576 U.S. 409, 417 (2015). But, like Salerno, those cases

did not involve facial vagueness claims. Salerno addressed a facial attack on

the federal Bail Reform Act based on substantive due process and Eighth

Amendment grounds. See 481 U.S. at 746-55. In Bonta, the facial challenge

to a state regulation was based on the First Amendment, and the Court noted

that Salerno did not apply in that context. See 141 S. Ct. at 2387. Lastly,

Patel involved a facial challenge to a state ordinance on Fourth Amendment

grounds. See 576 U.S. at 419-28.

The continued viability of Salerno in these other contexts can fairly be

reconciled with my interpretation of Johnson. As Justice Thomas suggested

in his dissent in Johnson, the Supreme Court has effectively recognized that

“void-for-vagueness claims are different from all other facial challenges not

based on the First Amendment.” 576 U.S. at 636 n.2 (Thomas, J., dissenting).

Writing for the majority in Davis, Justice Gorsuch explained why vagueness

29 challenges merit special treatment. The core concern of the vagueness

doctrine is lack of fair notice, that is, subjecting people to laws without giving

them adequate warning about what those laws require. See Davis, 139 S. Ct.

at 2323. In addition, vague laws constitute an impermissible delegation of

legislative power because “[t]hey hand off the legislature’s responsibility for

defining criminal behavior to unelected prosecutors and judges.” See id.

Because of these constitutional infirmities, “a vague law is no law at all.” Id.

This reasoning is consistent with Johnson and leads me to conclude that

plaintiffs should have a wider path to raise facial vagueness challenges than

the stringent “vague in all applications” standard otherwise allows.

But even if I am wrong that Johnson requires more than such a

minimal showing to defeat a vagueness claim, the “vague in all applications”

standard would not apply here for several reasons. First, plaintiffs have

alleged that the amendments abridge their First Amendment freedoms,

which is a recognized exception to that standard. See, e.g., United States v.

Williams, 553 U.S. 285, 304 (2008); Frese, 53 F.4th at 6-7; see also Grayned

v. City of Rockford, 408 U.S. 104, 109 (1972) (recognizing that “where a vague

statute abuts upon sensitive areas of basic First Amendment freedoms, it

operates to inhibit the exercise of those freedoms”) (cleaned up).

Second, unlike the statute in Flipside, the education and

antidiscrimination amendments neither “simply regulate business behavior”

30 nor “contain[] a scienter requirement.” See 455 U.S. at 499. Rather, as

defendants conceded at oral argument, the amendments lack a scienter

requirement and their violation can lead to serious consequences, including

the loss of livelihood. These features make the amendments more analogous

to the anti-loitering statute in Morales, where a plurality of the Supreme

Court sustained a facial vagueness challenge because the statute had no

scienter requirement, burdened a constitutional right, and vagueness

“permeate[d] the text” of the law. See 527 U.S. at 55.

To summarize, the void-for-vagueness doctrine does not require a

showing that a statute is vague in all of its applications, especially where, as

here, the law subjects a violator to serious consequences, lacks a scienter

requirement, and implicates First Amendment rights. Therefore, that some

conduct clearly falls within the amendments’ scope is insufficient to defeat

plaintiffs’ vagueness claim.

3. Application of the Vagueness Standard to Plaintiffs’ Claim

“The vagueness doctrine, a derivative of due process, protects against

the ills of laws whose prohibitions are not clearly defined.” Frese, 53 F.4th at

6 (cleaned up). The Supreme Court has stated that “[t]he degree of vagueness

that the Constitution tolerates . . . depends in part on the nature of the

enactment.” Flipside, 455 U.S. at 498. Notably, greater clarity is required

31 when a statute either restricts speech, imposes a particularly severe penalty,

or lacks a scienter requirement.

The prospect of “the chilling of constitutionally protected speech” has

led courts to “apply a heightened standard” when reviewing statutes that

impose restrictions on speech. Frese, 53 F.4th at 6 (cleaned up); see also

Grayned, 408 U.S. at 109. As a result, speech restrictions “require a greater

degree of specificity.” Frese, 53 F.4th at 6 (cleaned up). The amendments at

issue in this case are explicit viewpoint-based speech limitations that, as

discussed above, arguably affect both the curricular and extracurricular

speech of public primary and secondary school teachers. Because their

extracurricular speech is plausibly entitled to First Amendment protection, a

rigorous vagueness review is required.

The need for clarity is likewise paramount when a statutory provision

authorizes severe consequences for a violator. For example, it is well-settled

that criminal laws are subjected to the most exacting vagueness review. See

Dimaya, 138 S. Ct. at 1212. Although the Supreme Court has at times

endorsed “greater tolerance of enactments with civil rather than criminal

penalties because the consequences of imprecision are qualitatively less

severe,” Flipside, 455 U.S. at 498-99, the Court in Dimaya rejected the notion

that a less stringent standard should apply in civil cases involving

particularly severe consequences. See Dimaya, 138 S. Ct. at 1212-13. In light

32 of the “grave nature of deportation” at issue in that case, the Court reasoned

that the same standard of certainty required of criminal laws applies in the

civil removal context. Id. at 1213 (cleaned up). In his concurrence, Justice

Gorsuch also called into question the basis for imposing a lesser standard in

the civil context in part because many civil laws carry greater penalties than

some criminal laws, such as those “that strip persons of their professional

licenses and livelihoods.” Id. at 1229 (Gorsuch, J., concurring). Considering

that teachers who are found to have advocated a banned concept can be

stripped of their teaching credentials and thus deprived of their livelihoods,

this factor points in favor of requiring the most exacting vagueness review.

Lastly, laws that fail to incorporate a scienter requirement may also

receive greater scrutiny. See, e.g., United States v. Nieves-Castano, 480 F.3d

597, 603 (1st Cir. 2007) (explaining that the statute’s “scienter requirement

ameliorates any vagueness concerns”) (citing Hill v. Colorado, 530 U.S. 703,

732 (2000)). Indeed, the Supreme Court “has long recognized that the

constitutionality of a vague statutory standard is closely related to whether

that standard incorporates a requirement of mens rea.” Colautti v. Franklin,

439 U.S. 379, 395 (1979), abrogated on other grounds, Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228 (2022) (citing United States v. U.S.

Gypsum Co., 438 U.S. 422, 434-46 (1978); Papachristou v. City of

Jacksonville, 405 U.S. 156, 163 (1972); Boyce Motor Lines v. United States,

33 342 U.S. 337, 342 (1952)). As defendants have acknowledged, the education

and antidiscrimination amendments lack a scienter requirement. In other

words, teachers are not “protected from being caught in [the statute’s] net by

the necessity of having a specific intent to commit” a violation. See

Papachristou, 405 U.S. at 163. As a result, inadvertent statements that are

later deemed to advocate a banned concept can violate the amendments. This

concern, combined with the amendments’ viewpoint-based speech restrictions

and the severe consequences that can follow if a teacher is found to have

taught or advocated a banned concept, lead me to conclude that the exacting

vagueness standard applied in criminal cases should apply here as well.

That standard requires that the law must give “a person of ordinary

intelligence fair notice of what is prohibited” and must not be “so

standardless that it authorizes or encourages seriously discriminatory

enforcement.” Williams, 553 U.S. at 304. A law is unconstitutionally vague if

it fails either requirement. See id. Even under this demanding standard,

however, vagueness doctrine does not require “perfect clarity and precise

guidance.” Id. (cleaned up). Rather, a statute is unconstitutionally vague for

failing to provide adequate notice “only if it prohibits . . . an act in terms so

uncertain that persons of average intelligence would have no choice but to

guess at its meaning and modes of application.” Frese, 53 F.4th at 10 (cleaned

up). Similarly, a “statute authorizes an impermissible degree of enforcement

34 discretion — and is therefore void for vagueness — where it fails to set

reasonably clear guidelines for law enforcement officials and triers of fact in

order to prevent arbitrary and discriminatory enforcement.” Id. at 7 (cleaned

up).

Defendants argue that they should prevail even under this standard

because the education and antidiscrimination amendments provide adequate

notice and sufficient enforcement guidelines. I disagree. Although the

amendments identify certain core concepts that may not be taught, they do

not give either teachers or enforcers the guidance they need to find the line

between what the amendments prohibit and what they permit. This is so

especially because the amendments allow teachers to be sanctioned for

speech that advocates a banned concept only by implication.

In addition to express advocacy, the AG has opined that the

amendments can be violated by conduct that merely implies the truthfulness

of a banned concept. See Doc. No. 36-10 at 7. For example, the opinion states

that a public employer could violate the amendments if it creates a web-based

anti-racist resource and states that it was designed to “serve as a resource for

our white employees.” Id. According to the AG, this conduct could violate the

amendments because it “may imply that white people, specifically and for no

other reason, are in need of anti-racist resources.” Id. (emphasis added). In

other words, a teacher could unknowingly violate the amendments by making

35 a statement that does not expressly endorse a banned concept but that could

be understood to imply it. Coupled with the enforcing agencies’ view that the

amendments are not limited to curricular speech but also governs teachers’

conduct during extracurricular activities, this statutory construction leaves

open countless applications where a teacher does not directly assert a banned

concept but, in the view of an enforcer, implies its correctness.

Consider, for example, the third banned concept, which bars an

educator from teaching or advocating “[t]hat an individual should be

discriminated against or receive adverse treatment solely or partly because of

his or her . . . race.” RSA § 193:40, I(c). In the coming months, the Supreme

Court will decide whether colleges and universities can continue to use race-

conscious admission policies. The plaintiffs in those cases assert that such

policies improperly favor Black applicants at the expense of white and Asian-

American applicants, whereas the defendants argue that the policies are

necessary to ensure diversity in higher education. If a high school teacher

attempts to explain the diversity argument to her class during a discussion of

the case, will she face sanctions for teaching a banned concept? We simply

don’t know.

Likewise, consider the fourth banned concept, which prohibits, among

other things, teaching or advocating that white people cannot treat Black

people “without regard to” their race. RSA § 193:40, I(d). Given that advocacy

36 can take many forms, there is a real risk that a teacher could face sanctions

for discussing the concept of implicit bias with a student.

Although I do not understand implicit bias to expressly embrace the

notion that a person in one group “cannot” treat a person in another group

equally, a discussion may certainly imply as much in the minds of others who

have a different understanding of the concept. For example, a teacher may

state that white persons can have difficulty treating non-white persons

without regard to their race. An enforcer may later decide that the discussion

implied support for the proposition that a white person “cannot” treat a Black

person without regard to race, in violation of the fourth banned concept.

These examples illustrate the principal problem with the amendments:

they do not give teachers fair notice of what they can and cannot teach.

Teachers can be sanctioned for speech that they do not intend to advocate a

banned concept. They can be sanctioned even for speech that is later deemed

to violate the amendments only by implication. Because teachers can lose

their jobs and teaching credentials if they cross the line into prohibited

speech, they should not be left to guess about where that line will be drawn.

These problems are compounded because, as plaintiffs point out,

teachers in New Hampshire have an affirmative duty to teach topics that

potentially implicate several of the banned concepts. For example, state law

explicitly mandates teaching about the evolution of “intolerance, bigotry,

37 antisemitism, and national, ethnic, racial, or religious hatred and

discrimination,” as well as “how to prevent the evolution of such practices.”

RSA § 189:11, I(j). Although the education and antidiscrimination

amendments create an exception for teaching the “historical existence of

ideas and subjects identified” as banned concepts, see RSA § 193:40, II, this

exception does not fully encompass the broader scope of learning that RSA

§ 189:11 mandates. For example, beyond teaching the historical existence of

Jim Crow laws, teachers are supposed to discuss their evolution and how

such practices can be prevented. In this context, it is not difficult to imagine

that a discussion of remedies for past discrimination such as reparations

would take place, which could subject a teacher to sanctions for teaching a

banned concept. As a result, teachers could, in plaintiffs’ words, be left with

“an impermissible Hobson’s choice”: shirking their responsibilities under RSA

§ 189:11, or teaching what RSA § 189:11 requires and potentially violating

the prohibition against teaching a banned concept in RSA § 193:40. See Doc.

No. 46 at 9. This is even more reason to require clarity in the amendments.

Teachers should not be put in a position where they must instruct students

on certain concepts but face the threat of job loss if their instruction

unintentionally and only by implication crosses the line drawn in RSA

§ 193:40.

38 Defendants argue that a sufficiently narrow construction of the

amendments would allay these fair notice concerns. In fact, during oral

argument, defendants — one of whom is the AG — invited me to reject the

AG’s opinion that implied advocacy of a banned concept can violate the

amendments. This position is untenable for several reasons.

First, a federal court is “without power to adopt a narrowing

construction of a state statute unless such a construction is reasonable and

readily apparent.” Stenberg v. Carhart, 530 U.S. 914, 944 (2000) (quoting

Boos v. Barry, 485 U.S. 312, 330 (1988)). This principle is an extension of the

rule that a court cannot simply rewrite a statute to make it sufficiently clear.

See id. Although defendants now seem to endorse the view that only express

advocacy of a banned concept is prohibited, they have not persuaded me at

this early stage in the case that the amendments are readily susceptible to

such a construction.

Second, defendants’ interpretation is at odds with the position that the

AG has taken and that, to my knowledge, remains his official opinion on the

subject. Although the AG’s opinion does not have the force and effect of law,

see id. at 940, it is a plausible reading of the statutory text. RSA § 193:40, I

provides that “[n]o pupil . . . shall be taught, instructed, inculcated or

compelled to express belief in, or support for,” the banned concepts. It is

arguable that these forms of expression encompass not only express

39 statements but also conduct that, by implication, constitutes teaching,

instruction, or inculcation, such that the amendments sweep as broadly as

plaintiffs fear.

So construed, the amendments also lack sufficient standards to guide

agency discretion when determining what conduct constitutes a violation.

How is an agency to determine whether a teacher has implied the truth of a

banned concept? The amendments are silent on the matter, leaving it to the

subjective ad hoc judgment of an enforcer. Cf. U.S. Lab. Party v. Pomerleau,

557 F.2d 410, 412 (4th Cir. 1977) (“Because a violation depends on the

subjective opinion of the investigator, the speaker has no protection against

arbitrary enforcement of the ordinance.”); James v. Wilkinson, No. 89-0139-

P(CS), 1991 WL 626750, at *5 (W.D. Ky. May 20, 1991) (explaining that when

the focus is on what was implied rather than expressed, “the implication is,

as with beauty, in the eye of the beholder”). As such, the amendments

arguably create a significant risk of arbitrary enforcement. See Grayned, 408

U.S. at 108 (“[I]f arbitrary and discriminatory enforcement is to be prevented,

laws must provide explicit standards for those who apply them.”).

Defendants argue that the amendments’ enforcement structure

protects against arbitrary or discriminatory enforcement. But nothing

precludes a person from reporting a teacher to the department of education

for violating the educator code of conduct. Under that department’s

40 regulations, “[a] case shall be opened when a complaint of possible

misconduct against a credential holder has come to the attention of the

department either through direct reporting or other means.” N.H. Code

Admin. R. Ed 511.01(a). Further, an investigation must be opened if there is

a “possible violation” of the educator code of conduct. Id. Ed 511.01(b). Thus,

the department of education must investigate possible violations of RSA

§ 193:40, which provides an avenue for directly pursuing teachers.

Defendants maintain, however, that the enforcing agencies have

informally settled on a process whereby such complaints against teachers are

not considered until there has been a finding of a violation against the school.

This process, defendants assert, is designed to “weed out the types of

harassing or spurious complaints [that plaintiffs] appear to be concerned

with.” Doc. No. 36-1 at 35. But that process is neither a statutory nor a

regulatory requirement. It is only at the sufferance of the education

commissioner that complaints against teachers are purportedly held in

abeyance. 6 As such, the procedural safeguards that defendants tout are

arguably insufficient to protect plaintiffs against arbitrary enforcement.

6 In any event, plaintiffs have alleged that the department of education is independently investigating such complaints prior to any finding of a statutory violation against a school. They appended to their pleading material suggesting that the department has engaged in investigative activities concerning complaints that are at least plausibly based on alleged violations of RSA § 193:40. See Doc. No. 45-2 at 17–21.

41 Instead, as plaintiffs suggest, “the fragmented and multiple layers of

enforcement only serve to create many more opportunities for arbitrary and

discriminatory enforcement.” Doc. No. 45 at 36. 7

In sum, the amendments’ vague terminology, their lack of a scienter

requirement, and the possibility that teachers could be found liable for

teaching a banned concept by implication, leave both teachers and enforcers

to guess at what speech the amendments prohibit. Given the severe

consequences that teachers face if they are found to have taught or advocated

a banned concept, plaintiffs have pleaded a plausible claim that the

amendments are unconstitutionally vague.

7 Although the issue has not yet been briefed, it is difficult to reconcile the AG’s position that teachers will not face individual liability for damages with a fair reading of chapter 354-A as amended. RSA § 354-A:31 now prohibits a public employer from teaching or advocating a banned concept to a student. RSA § 354-A:2, XV(a) provides that any violation of chapter 354-A is an “unlawful discriminatory practice.” RSA § 354-A:2, XV(d) states that aiding and abetting an unlawful discriminatory practice is itself an unlawful discriminatory practice. And the New Hampshire Supreme Court ruled in U.S. Equal Opportunity Commission v. Fred Fuller Oil Company, 168 N.H. 606, 611 (N.H. 2016) that individual employees can be sued for aiding and abetting an unlawful discriminatory practice by an employer. Thus, in its current form, chapter 354-A appears to allow damage actions to be brought against individual teachers for aiding and abetting a violation of RSA § 354- A:31 by their employers.

42 IV. CONCLUSION

Defendants’ motion to dismiss the AFT plaintiffs’ First Amendment

claim (Doc. No. 36) is granted in part and denied in part. Defendants’ motions

to dismiss plaintiffs’ vagueness claims (Doc. Nos. 36 and 37) are denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

January 12, 2023

cc: Counsel of record