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

2024 DNH 040

• Court: District Court, D. New Hampshire
• Decided: May 28, 2024
• Docket: 21-cv-1077-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Local 8027, AFT-N.H., AFL-CIO, et al.,

v. Case No. 21-cv-1077-PB Opinion No. 2024 DNH 040 Frank Edelblut, Commissioner, N.H. Department of Education, et al.

MEMORANDUM AND ORDER

In 2021, the State of New Hampshire substantially amended its

education and antidiscrimination laws. The new laws were quickly

challenged in two separate lawsuits. The cases, both filed on behalf of public

school educators, were subsequently consolidated into the present action. The

matter is before me on the parties’ cross-motions for summary judgment.

I. BACKGROUND

A. The Amendments

The laws at issue in this case have their genesis in New Hampshire

House Bill 544 (“HB544”). HB544, in turn, was based on President Trump’s

executive order on “Combating Race and Sex Stereotyping.” See Exec. Order

No. 13950, 85 Fed. Reg. 60683 (Sept. 22, 2020), revoked by Exec. Order No.

13985, 86 Fed. Reg. 7009 (Jan. 20, 2021). That executive order sought to end

federally-funded training based on “anti-American propaganda,” such as “critical race theory” (“CRT”) 1 See OFF. OF MGMT. & BUDGET, EXEC. OFF. OF

THE PRESIDENT, OMB MEMORANDUM NO. M-20-34, TRAINING IN THE FEDERAL

GOVERNMENT (2020). To this end, the executive order prohibited the use of

public funds to promote so-called “divisive concepts” pertaining to race and

sex. Exec. Order No. 13950, 85 Fed. Reg. at 60685.

After President Biden revoked President Trump’s executive order, New

Hampshire state legislators introduced HB544 to prohibit the state from

teaching the same “divisive concepts” identified in President Trump’s

executive order. 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 sections 297

1 CRT refers to a 1970s-era movement within the legal academy that sought to analyze the role of race and racism in the American legal system. VICTOR RAY, ON CRITICAL RACE THEORY xxi-xxiii (2022). Although the phrase is used to describe a diverse category of scholarship, CRT fundamentally looks to “the various ways in which assumptions about race affect the players within the legal system (judges, lawyers, and lay people) and have a determining effect on substantive legal doctrines.” Douglas E. Litowitz, Some Critical Thoughts on Critical Race Theory, 72 NOTRE DAME L. REV. 503, 503- 04 (1999). CRT is premised on several “core tenets,” including, most notably, that race is a social construct, rather than a biological reality; that racism is a common and pervasive force throughout society that exists on a structural, rather than purely individual, level; and that racism cannot be effectively addressed through “[c]olorblindness” or race-neutral policies. Angela Onwuachi-Willig, The CRT of Black Lives Matter, 66 ST. LOUIS U.L.J. 663, 669-70 (2022) (collecting sources); accord RAY, supra, at 3, 17, 32.

2 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 modified the state’s education and antidiscrimination laws in

several ways. 2 It added a new provision to the education laws, codified at

N.H. Rev. Stat. Ann. (“RSA”) § 193:40, which identifies four concepts that

public primary or secondary school students 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;

(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

2 I refer to the amendments to the state’s education and antidiscrimination laws collectively as the “Amendments.”

3 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 § 354-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

program advocates, trains, teaches, instructs, or compels participants to

express belief in, or support for,” any of the banned concepts.

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 § 354-A:34 similarly

permits a person “aggrieved” by a violation of the antidiscrimination

4 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, and

revocation of the 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 concept may lose not only his or her job, but also the ability to teach

anywhere in the state. See id.; see also N.H. Code Admin. R. 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” as 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

5 states that the new laws do not impose any limitations on “the academic

freedom of faculty members” at public colleges and universities.

Passage of the 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”)—collectively produced guidance regarding the

scope and effects of the new provisions in the form of two “Frequently Asked

Questions” documents (“FAQs”). Doc. 36-8; Doc. 36-9. Educators and other

stakeholders, however, continued to raise concerns that the Amendments

were “confusing and that public employers and schools will struggle to

understand the scope of the new prohibitions.” Doc. 36-10 at 1.

Accordingly, in September 2021, the New Hampshire Attorney General

(“AG”) issued an official opinion concerning the scope and application of the

new laws. Id. Describing the new statutory provisions as “legislation of

limited reach,” the AG opined that the first two banned concepts proscribe

advocacy that an 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, 5. According to the

opinion, the last two banned concepts prohibit advocacy “that any identified

6 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. at 3.

Defendant Frank Edelblut, the Commissioner of the Department of

Education, also published two opinion articles in the New Hampshire Union

Leader that expressed his support for the Amendments. The first of the two

op-eds was published on June 13, 2021, prior to HB2’s passage. In it,

Edelblut argued that the Amendments were “important” and a necessary

“contribution to our education system.” Doc. 85-22 at 4. The second op-ed,

entitled “Education’s Sacred Trust” and published on April 15, 2022,

criticized “activist educators who might be knowingly dismantling the

foundations of a value system [parents] are attempting to build.” Doc. 85-41

at 3.

In its online version, the April 2022 article appended several

documents that, according to Edelblut, exemplified “actual instructional

material from New Hampshire schools that parents have identified as

conflicting with their values” and which demonstrated “biases [that] are

beginning to seep into our own institutions.” Id. Several of those attachments

had been submitted to the Department of Education by parents and other

community members, including two books—Stamped: Racism, Antiracism,

7 and You: A Remix of the National Book Award-winning “Stamped from the

Beginning,” by Jason Reynolds and Dr. Ibram X. Kendi, and This Book is

Anti-Racist, by Tiffany Jewell—as well as materials concerning diversity that

were provided to students in a Human Relations course. Id. at 20, 39-40, 63-

66.

B. Procedural Background

In December 2021, two groups of plaintiffs filed suit against the

education commissioner and other state officials, challenging the

Amendments in separate complaints. The first group consists of five

educators and Local 8027 of the American Federation of Teachers-New

Hampshire, a labor union representing 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

(“DEI”) school administrators, and the National Education Association-New

Hampshire, a professional association representing more than 17,000

educators in the state (collectively, “NEA plaintiffs”). Both sets of plaintiffs

argued that the Amendments are unconstitutionally vague on their face. The

AFT plaintiffs also asserted that the Amendments violate their First

8 Amendment right to free speech. The two actions were later consolidated, and

the defendants moved to dismiss both complaints.

My memorandum order, issued on January 12, 2023, granted the

defendants’ motions in part and denied them in part. Doc. 63. I dismissed the

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

plaintiffs’ assertion that primary and secondary school teachers have a

constitutional right to control their curricular speech. Id. at 17. Because,

however, I determined that the Amendments plausibly could be construed to

also reach teachers’ constitutionally protected private speech, I declined to

dismiss the claim in full. Id.

When addressing the plaintiffs’ vagueness claim, I first resolved a

dispute concerning the standard a court must use when evaluating a pre-

enforcement facial vagueness claim. 3 Id. at 21. The defendants, relying on

Village of Hoffman Estates v. Flipside, Hoffman Estates., Inc., 455 U.S. 489

(1982), took the position that a facial vagueness challenge can never succeed

3 In addition to the plaintiffs’ pre-enforcement facial vagueness claim, they also assert what they describe as an as-applied vagueness claim in the sense that the Amendments are vague “as applied” specifically to teachers. I expressed skepticism that their claim is really an as-applied challenge when I addressed the defendants’ motions to dismiss, but I declined to dismiss the claim because the issue had not been adequately briefed. Id. at 20. The parties have again declined to brief the issue. Because I conclude that the Amendments are facially invalid, I need not consider whether the plaintiffs can maintain their as-applied challenge as a distinct cause of action.

9 unless the challenged statute is vague in all applications. I rejected the

defendants’ argument based on Johnson v. United States, 576 U.S. 591

(2015), Sessions v. Dimaya, 584 U.S. 148 (2018), and United States v. Davis,

588 U.S. 445 (2019), a trio of more recent decisions in which the Supreme

Court refused to apply the “vague in all applications” standard to the facial

vagueness challenges that were before the Court. 4 Applying the generally

accepted test for vagueness challenges, I then determined that the plaintiffs

had stated a plausible claim for relief. Doc. 63 at 42.

The parties have since engaged in expedited discovery and filed cross-

motions for summary judgment. Both sides agree that no material facts are

4 The defendants maintain that Village of Hoffman Estates remains good law, and they argue again in favor of the “vague in all applications” standard. I see no reason to revisit my earlier conclusion, beyond noting that, since I issued my order, the Courts of Appeals for the Fourth and Eleventh Circuits have also concluded that Johnson, Sessions, and Davis widened the path for facial vagueness challenges beyond the “vague in all applications” standard. See Young Israel of Tampa, Inc. v. Hillsborough Area Reg’l Transit Auth., 89 F.4th 1337, 1349-50 (11th Cir. 2024) (explaining that pursuant to United States v. Salerno, 481 U.S. 739 (1987), a “successful facial challenge require[d] a showing that the law in question is unconstitutional in all of its applications,” but that “in its more recent cases,” including Sessions and Johnson, “the Supreme Court has cut back on the broad statement . . . at least when vagueness is the constitutional vice”); Carolina Youth Action Project v. Wilson, 60 F.4th 770, 781-82 (4th Cir. 2023) (“[T]he Supreme Court has now twice clarified that ‘although statements in some of [its] opinions could be read to suggest otherwise,’ the Court’s ‘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.’”) (emphasis in original) (quoting Johnson, 576 U.S. at 602).

10 in dispute and the case is ready for resolution. Because I conclude that the

Amendments are unconstitutionally vague, I grant the plaintiffs’ motion for

summary judgment (Doc. 83) and deny the defendants’ corresponding cross-

motion (Doc. 84) without addressing the AFT plaintiffs’ First Amendment

argument.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record reveals “no genuine

issue as to any material fact and reflects the movant's entitlement to

judgment as a matter of law.” Perea v. Editorial Cultural, Inc., 13 F.4th 43,

50 (1st Cir. 2021) (cleaned up). The evidence submitted in support of the

motion must be considered in the light most favorable to the nonmoving

party, drawing all reasonable inferences in its favor. Navarro v. Pfizer Corp.,

261 F.3d 90, 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the absence of

any genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). A material fact “is one ‘that might affect the outcome of the suit

under the governing law.’” United States v. One Parcel of Real Prop., 960

F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). If the moving party satisfies this burden, the

nonmoving party must then “produce evidence on which a reasonable finder

11 of fact, under the appropriate proof burden, could base a verdict for it; if that

party cannot produce such evidence, the motion must be granted.” Ayala–

Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996); see

Celotex, 477 U.S. at 323.

When parties cross-move for summary judgment, the standard of

review is applied to each motion separately. Am. Home Assurance Co. v.

AGM Marine Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006); see Mandel

v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir. 2006) (“The presence of

cross-motions for summary judgment neither dilutes nor distorts this

standard of review.”). Thus, I must “determine whether either of the parties

deserves judgment as a matter of law on facts that are not disputed.” Adria

Int’l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).

III. ANALYSIS

The plaintiffs argue that the Amendments violate the Fourteenth

Amendment’s Due Process Clause because they are unconstitutionally vague.

I begin with the legal principles that shape my analysis.

A. The Vagueness Standard

Vagueness doctrine “rests on the twin constitutional pillars of due

process and separation of powers.” Davis, 588 U.S. at 451; see also Sessions,

584 U.S. at 155-56. The doctrine serves due process concerns by requiring

12 that those subject to the law be given “a reasonable opportunity to know what

is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). It also

promotes the proper allocation of power among the three branches of

government by requiring legislatures, rather than less politically accountable

judges and executive branch officials, to “define what conduct is sanctionable

and what is not.” Sessions, 584 U.S. at 156. Accordingly, a legislative

enactment will be found to be unconstitutionally vague if it “fails to provide a

person of ordinary intelligence fair notice of what is prohibited, or is so

standardless that it authorizes or encourages seriously discriminatory

enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008); see also

McCoy v. Town of Pittsfield, 59 F.4th 497, 509 (1st Cir. 2023) (applying

Williams to a vagueness challenge to a town ordinance).

Vagueness doctrine does not require perfect legislative precision. “What

renders a statute vague is not the possibility that it will sometimes be

difficult to determine whether the incriminating fact it establishes has been

proved; but rather the indeterminacy of precisely what that fact is.”

Williams, 553 U.S. at 306. “Because words are rough-hewn tools, not

surgically precise instruments, some degree of inexactitude is acceptable in

statutory language. Reasonable breadth in the terms employed by an

ordinance does not require that it be invalidated on vagueness grounds.”

13 Draper v. Healey, 827 F.3d 1, 4 (Souter, Circuit Justice, 1st Cir. 2016)

(cleaned up). Instead, a statute is unconstitutionally vague “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 v. Formella, 53 F.4th 1, 10 (1st Cir. 2022) (cleaned up). And a “statute

authorizes an impermissible degree of enforcement 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 (quoting Act Now to Stop

War & End Racism Coal. v. District of Columbia, 846 F.3d 391, 410 (D.C.

Cir. 2017)).

1. Speech Restrictions

The degree of scrutiny that a legislative enactment will receive when it

is challenged on vagueness grounds will vary depending on both the nature of

the enactment and the consequences that follow from its violation. When

assessing a vagueness challenge, the “test of vagueness applies with

particular force in review of laws dealing with speech.” Hynes v. Mayor of

Oradell, 425 U.S. 610, 620 (1976); see also Vill. of Hoffman Ests., 455 U.S. at

499 (noting that “a more stringent vagueness test should apply” to laws

interfering with the right of free speech). This is because First Amendment

14 “freedoms are delicate and vulnerable, as well as supremely precious in our

society. The threat of sanctions may deter their exercise almost as potently as

the actual application of sanctions. Because First Amendment freedoms need

breathing space to survive, government may regulate in the area only with

narrow specificity.” NAACP v. Button, 371 U.S. 415, 433 (1963) (citations

omitted). “[W]here a vague statute abuts upon sensitive areas of basic First

Amendment freedoms, it operates to inhibit the exercise of those freedoms.”

Grayned, 408 U.S. at 109 (cleaned up). “Uncertain meanings inevitably lead

citizens to steer far wider of the unlawful zone than if the boundaries of the

forbidden areas were clearly marked.” Id. (cleaned up). Such self-censorship

is inimical to our democracy, as “[t]he right to speak freely and to promote

diversity of ideas and programs is . . . one of the chief distinctions that sets us

apart from totalitarian regimes.” Terminiello v. City of Chicago, 337 U.S. 1, 4

(1949).

The danger presented by vague speech restrictions is especially severe

when a law purports to regulate speech based on the speaker’s viewpoint. As

the Supreme Court has explained:

Discrimination against speech because of its message is presumed to be unconstitutional. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from

15 regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-29 (1995)

(citations omitted); see also Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65,

82 (1st Cir. 2004) (“The bedrock principle of viewpoint neutrality demands

that the state not suppress speech where the real rationale for the

restriction is disagreement with the underlying ideology or perspective that

the speech expresses.”). Courts should thus “apply the most exacting

scrutiny to regulations that suppress, disadvantage, or impose differential

burdens upon speech because of its content.” Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 642 (1994).

2. Penalty Provisions

The consequences that follow from a violation of an allegedly vague

statute can also affect “[t]he degree of vagueness that the Constitution

tolerates.” Vill. of Hoffman Ests., 455 U.S. at 498. Civil statutes will often be

subject to lesser scrutiny than criminal statutes because “the consequences

of imprecision are less severe.” Sessions, 584 U.S. at 156 (quoting Vill. of

Hoffman Ests., 455 U.S. at 498-99). But “the happenstance that a law is

found in the civil or criminal part of the statute books” is not dispositive. Id.

at 184 (Gorsuch, J., concurring in part). As Justice Gorsuch observed in

16 Sessions, certain civil penalties are “routinely graver than those associated

with misdemeanor crimes—and often harsher than the punishment for

felonies.” Id.; see also Kashem v. Barr, 941 F.3d 358, 370 (9th Cir. 2019) (“A

provision that nominally imposes only civil penalties but nonetheless carries

a ‘prohibitory and stigmatizing effect’ may warrant ‘a relatively strict test.’”)

(quoting Vill. of Hoffman Estates, 455 U.S. at 499)). Grave civil penalties can

include “remedies that strip persons of their professional licenses and

livelihoods.” Sessions, 584 U.S. at 184 (Gorsuch, J., concurring in part).

Those are precisely the sanctions that the Amendments contemplate

here. RSA § 193:40, IV states that teaching a banned concept constitutes a

“violation of the educator code of conduct.” Because those who violate the

educator code of conduct may have their teaching credentials revoked, the

education amendments threaten teachers with the loss of their livelihood as

well as the inability to practice their chosen profession anywhere in the

state. See N.H. Code Admin. R. Ed 511.01(j)(2)(b). And, despite the

defendants’ arguments to the contrary, the antidiscrimination amendments

expose teachers to civil liability. The antidiscrimination amendments

provide that anyone aggrieved by a violation of the statute can pursue “all of

the remedies available under” the Law Against Discrimination. RSA

§ 354-A:34. The Law Against Discrimination, in turn, authorizes aggrieved

17 parties to sue not only employers but also individual employees who aid and

abet in an employer’s “unlawful discriminatory practice.” See RSA

§ 354:A-21, I(a); see also U.S. Equal Opportunity Comm’n v. Fred Fuller Oil

Co., 168 N.H. 606, 610 (2016). Because the phrase “unlawful discriminatory

practice” is defined to include a violation of any provision of Chapter 354-A—

including the antidiscrimination amendments—a teacher found to have

aided and abetted the teaching of a banned concept in violation of RSA

§ 354-A:31 may be subject to monetary damages. 5 See RSA § 354-A:2, XV.

5 Although the defendants did not address the issue in their brief, they argued at the motions hearing that teachers cannot be held liable for monetary damages under the antidiscrimination amendments. Relying on the “well established canon of statutory interpretation . . . ‘that the specific governs the general,’” the defendants argue that the narrow relief against teachers specified in RSA § 193:40 supersedes the broader relief that is generally permitted under the Law Against Discrimination. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)). The defendants’ argument, however, rests on the faulty premise that RSA § 193:40 provides an exclusive remedy against teachers who teach banned concepts. RSA § 193:40 addresses the professional consequences that could befall teachers who violate the education amendments, but it does not imply that those consequences are to the exclusion of any other remedies. And RSA § 193:40 does not reference, let alone restrict, the availability of damages for violations of the antidiscrimination amendments. Cf. In re Johnson, 161 N.H. 419, 424 (2011) (noting that the specific/general canon comes into play where “one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way”) (quoting State v. Bell, 125 N.H. 425, 432 (1984)); In re Heinrich, 160 N.H. 650, 654-55 (2010) (finding

18 In sum, RSA § 193:40 threatens teachers with the loss of their license,

while RSA § 354-A:31 threatens teachers with civil liability. Although

teachers do not face criminal penalties for teaching a banned concept, it is

difficult to conceive of more serious consequences that could befall a person

in a civil proceeding than those that a teacher might face if they are found to

have done something that the Amendments prohibit. For this reason, the

laws are subject to the “most exacting vagueness review.” Doc. 63 at 33.

3. Statutory Interpretation

Before determining whether the Amendments satisfy this standard, I

must first attempt to determine what they prohibit. Because the

Amendments are state laws, I construe them using the interpretive

principles that the New Hampshire Supreme Court employs when it

interprets legislation. See Faber v. Ciox Health, LLC, 944 F.3d 593, 602 n.7

(6th Cir. 2019) (explaining that federal courts use state law when construing

state statutes); see generally Abbe R. Gluck, Intersystemic Statutory

Interpretation: Methodology as “Law” and the Erie Doctrine, 120 YALE L.J.

1898 (2011). Following this approach, I begin with the statutory text. State

v. Priceline.com, Inc., 172 N.H. 28, 33 (2019). If a statute defines its terms, a

that a statute that provided detail as to a particular subject controlled over one that lacked any detail).

19 court ordinarily will defer to the meaning provided by the legislature. Id. But

where those terms are left undefined, a court must attempt to determine

whether legislative language has a “plain and ordinary meaning.” Id.

(quoting Appeal of Town of Pelham, 143 N.H. 536, 538 (1999)). In

undertaking this process, a court “will not consider what the legislature

might have said or add language that the legislature did not see fit to

include.” Conduent State & Local Sols., Inc. v. N.H. Dep’t of Transp., 171

N.H. 414, 420 (2018). Statutes must be read “in the context of the overall

statutory scheme, not in isolation.” Czyzewski v. N.H. Dep’t of Safety, 165

N.H. 109, 111 (2013).

There is an important difference, however, between ordinary statutory

interpretation and judicial rewriting of legislation to save it from a

vagueness challenge. As the Supreme Court has explained when considering

vagueness challenges to federal statutes, “[t]his Court may impose a limiting

construction on a statute only if it is readily susceptible to such a

construction. We will not rewrite a law to conform it to constitutional

requirements, for doing so would constitute a serious invasion of the

legislative domain and sharply diminish Congress’s incentive to draft a

narrowly tailored law in the first place.” United States v. Stevens, 559 U.S.

460, 481 (2010) (cleaned up); see also Davis, 588 U.S. at 448 (“When

20 Congress passes a vague law, the role of courts under our Constitution is not

to fashion a new, clearer law to take its place, but to treat the law as a

nullity and invite Congress to try again.”). Because the Amendments are

state laws, the New Hampshire Supreme Court has the final say as to their

meaning. Accordingly, I will sustain the plaintiffs’ vagueness challenge only

if I determine that the Amendments are “not readily subject to a narrowing

construction by the state courts.” Erznoznik v. City of Jacksonville, 422 U.S.

205, 216 (1975).

B. The Amendments

The Amendments identify four banned concepts that a student may not

be “taught, instructed, inculcated or compelled to express belief in, or support

for.” RSA § 193:40, I. They do not, however, define any of the terms that must

be understood to determine what is prohibited. Nor has either the

Department of Education or the Commission on Human Rights adopted

regulations to explain the Amendments. See, e.g., In re Weaver, 150 N.H.

254, 256 (2003) (explaining that although “the interpretation of a statute is to

be decided ultimately by” the courts, “statutory construction by those charged

with its administration is entitled to substantial deference”).

In light of the limited guidance as to what the Amendments prohibit, I

am persuaded they are fatally vague in three ways: (1) they do not provide

21 fair notice as to the concepts that teachers may not teach, (2) they do not

sufficiently explain when classroom discussion of a banned concept qualifies

as impermissible teaching, and (3) they do not give teachers enough

guidance to know when their extracurricular communications are within the

Amendments’ reach. I address each of these defects below and then explain

why the vagueness of the Amendments is compounded by the fact that they

permit teachers to be disciplined without a finding that a teacher has acted

with scienter. In the concluding section, I review the evidence in the record

that reveals how teachers have been affected by the Amendments since their

enactment.

1. The Concepts

One of the most difficult interpretive challenges the Amendments

present is that they fail to address their intended target directly. Cf. Teeboom

v. City of Nashua, 172 N.H. 301, 310 (2019) (noting that statutory

construction is guided by “the circumstances which led to [the statute’s]

enactment, and especially the evil or mischief which it was designed to

correct or remedy”) (quoting Appeal of Coastal Materials Corp., 130 N.H. 98,

103 (1987)). Supporters of the Amendments have made no secret of the fact

that their aim is to restrict what teachers can say about what plaintiffs call

22 DEI initiatives but supporters of the Amendments call CRT. 6 But rather than

take on issues like structural racism, implicit bias, and affirmative action

directly, the Amendments employ general terms such as teaching that one

race is superior to another, that individuals are inherently racist, and that

individuals should not be subject to adverse treatment because of their race.

While these banned concepts may appear straightforward at first glance,

their ambiguity comes to light when put into practice. 7

Take, for example, the second concept, which prohibits teaching that a

person, by virtue of his status in an identified group, is “inherently racist,

6 See, e.g., Doc 85-22 at 4 (Edelblut op-ed asserting that the law will address “those who promote Critical Race Theory or similar concepts”); Senate Finance Committee, HB 2 Deliberations, YOUTUBE (May 26, 2021), https://www.youtube.com/watch?v=0AbLc51xKrU (statement by Senator Bob Giuda advocating for the Amendments as necessary to “ensure that the minds of our future generations of our state are not being unduly influenced by advocacy for such toxins as Critical Race Theory”).

7 The first concept, which prohibits teaching that certain groups are “inherently superior” to others, is only scarcely addressed in the parties’ briefs. The defendants have not attempted to interpret the concept beyond reiterating its prohibitions, and the plaintiffs have not explained how the first concept fails to give adequate notice or invites arbitrary enforcement. Given the lack of developed argument on the matter, I do not address the first concept beyond noting that it suffers from the same interpretive challenges as the other three concepts. That is, because the first concept does not address its intended target directly, it is unclear “what is prohibited beyond literally espousing that, for example, ‘White people are superior to Black people.’” Honeyfund.com, Inc. v. DeSantis, 622 F. Supp. 3d 1159, 1181 (N.D. Fla. 2022).

23 sexist, or oppressive, whether consciously or unconsciously.” One broadly

accepted form of bias is “implicit bias,” which is understood to be a “negative

attitude, of which one is not consciously aware, against a specific social

group.” See Implicit Bias, AM. PSYCH. ASS'N,

https://www.apa.org/topics/implicit-bias [https://perma.cc/2ES7-YE4V].

Implicit biases are “thought to be shaped by experience and based on learned

associations between particular qualities and social categories” and may

influence behavior, even if unconsciously. Id. Does instructing students on

the prevalence of implicit bias teach them that some groups are “inherently

racist, sexist, or oppressive”?

The AG addressed this question in an official opinion, which concluded

that implicit bias trainings are not prohibited by the second concept. Doc. 85-

54 at 9. But, because the AG’s opinion substantially departs from any

accepted method of statutory interpretation, it exacerbates, rather than

resolves, the significant ambiguity created by the second concept.

The AG begins his argument by quoting a dictionary definition of

“inherent” as something that is “structural or involved in the constitution or

essential character of something : belonging by nature or settled habit :

intrinsic, essential.” Id. at 8 (quoting WEBSTER’S THIRD NEW INTERNATIONAL

DICTIONARY 1163 (2002)). He then focuses on the terms “intrinsic” and

24 “essential,” without addressing the fact that the definition on which he relies

includes tendencies that arise out of either “nature” or “settled habit.” Id.

Then, for reasons that the AG does not provide, he proceeds to develop his

own definition of inherent as something that is “natural, biological, or innate,

as opposed to being apparent, accidental, or a characteristic created by

external action or external factors, such as current or historical

discrimination, stereotyping, environment, or cultural messaging.” Id. Again,

without further explanation, the AG applies this definition to conclude that

the second concept does not prohibit teaching about implicit bias because it is

not an inherent form of bias. Id. at 8-9.

The AG’s analysis fails to persuade for several reasons. First, the AG

considers only a portion of the dictionary’s definition of “inherent,” without

grappling with the fact that the definition also states that something can be

inherent if it arises out of “settled habit.” Second, he does not attempt to

explain why implicit bias is not “inherent” even under his newly proffered

definition. And, finally, he does not specify what other forms of unconscious

bias may not be taught if the second concept does not include implicit bias.

Accordingly, the AG’s opinion does not resolve the lack of clarity left by

the text of the second concept. See Appeal of Pub. Serv. Co. of N.H., 124 N.H.

79, 87 (1983) (noting that, although an enforcing agency’s interpretation of a

25 statute is “entitled to [the court’s] consideration,” it need not be deferred to

where it is “based upon a misconstruction of the statute”). Without sufficient

guidance from the text of the Amendments or the AG, teachers cannot know

what, if any, instruction they can provide on implicit biases.

The third concept suffers from a similar vagueness problem. By its

terms, it prohibits only teaching that a person “should be discriminated

against or receive adverse treatment” because they belong to an identified

group. But how, if at all, does the concept apply to teaching about affirmative

action?

If one accepts the premise that providing a preference to one group

necessarily entails discrimination against other groups, then advocating for

at least some forms of affirmative action would be prohibited by the

Amendments. See Pernell v. Fla. Bd. of Governors of State Univ. Sys., 641 F.

Supp. 3d 1218, 1233-34 (N.D. Fla. 2022) (recognizing that teaching the merits

of affirmative action would be prohibited by a similarly worded statute); see

also Students for Fair Admissions, Inc. v. President & Fellows of Harvard

Coll., 600 U.S. 181, 218-19 (2023) (concluding that giving preference to

members of certain racial groups in college admissions necessarily subjects

members of other racial groups to unlawful discrimination). But whether this

premise is correct in all applications is an issue on which there is no real

26 consensus. 8 See, e.g., Caroline Mala Corbin, A Critical Race Theory Analysis

of Critical Race Theory Bans, 14 U.C. IRVINE L. REV. 57, 83 (2024) (asserting

that the third concept does not impact teaching about affirmative action

because “taking race into account” is not the same as “teaching that an

individual should be discriminated against” on the basis of race) (cleaned up).

Because the third concept makes no mention of this premise, and expressly

prohibits only teaching that a person should be “discriminated against”

because of their group status, teachers are left to guess when, if at all, the

third concept prohibits teachers from teaching about the benefits of

affirmative action.

The issue only becomes murkier when considering specific efforts to

redress past discrimination and promote diversity. The Supreme Court has

concluded that at least some race-conscious remedies are legally permissible

and, indeed, constitutionally mandated in order to remedy the effects of past

discrimination. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402

U.S. 1, 18 (1971) (approving use of race conscious remedies to redress state-

imposed segregation); see also Parents Involved in Cmty. Schs., 551 U.S. 701,

8 Indeed, at the motions hearing, counsel for the defendants appeared to recognize a distinction between teaching that one group “should be discriminated against” and teaching that “one group [should be] preferred over another.” Doc. 108 at 7.

27 737 (2007) (“[N]o one questions that the obligation to disestablish a school

system segregated by law can include race-conscious remedies . . . .”). Can

teachers extol the virtues of these court-sanctioned efforts to remedy past

discrimination, even though they expressly involve differential treatment on

the basis of race?

What of efforts to increase diversity on which there is no judicial

consensus? For example, the First Circuit recently held that schools may

implement facially neutral measures to increase diversity, even if those

measures are adopted with the intention of reducing the percentage of over-

represented races within a particular institution. Bos. Parent Coal. for Acad.

Excellence Corp. v. Sch. Comm. for Bos., 89 F.4th 46, 60 (1st Cir. 2023). But

at least two members of the Supreme Court have questioned this holding,

expressing their view that even facially neutral policies can constitute racial

discrimination if undertaken with the purpose of increasing diversity. Coal.

for TJ v. Fairfax Cnty. Sch. Bd., No. 23-170, --- S. Ct. ----, 2024 WL 674659

(Mem), at *4 (Feb. 20, 2024) (Alito, J., joined by Thomas, J., dissenting from

the denial of certiorari).

As these cases demonstrate, the question of when efforts to redress past

discrimination or increase diversity cross into impermissible racial

discrimination presents a legal quandary on which reasonable minds can,

28 and do, differ. Yet the Amendments force teachers to guess as to which

diversity efforts can be touted and which must be repudiated, gambling with

their careers in the process.

The most obvious vagueness problem is presented by the fourth

concept, which prohibits teaching that individuals of one group “cannot and

should not attempt to treat others without regard to” their membership in

another group. As other courts have observed, this language is “bordering on

unintelligible” because it employs the dreaded triple negative form.

Honeyfund.com, 622 F. Supp. 3d at 1182; see also Pernell, 641 F. Supp. 3d at

1281 (“[C]oncept four thus features a rarely seen triple negative, resulting in

a cacophony of confusion.”). The defendants’ failure to resolve this confusion

and offer a substantive explanation as to the meaning of the concept only

highlights its lack of clarity.

But even if this were not enough, I cannot determine what, if anything,

the fourth concept prohibits that is not already banned by the first three

concepts. The New Hampshire Supreme Court has consistently made clear

that “[t]he legislature is not presumed to waste words or enact redundant

provisions and whenever possible, every word of a statute should be given

effect.” State v. Beattie, 173 N.H. 716, 720 (2020) (quoting Garand v. Town

of Exeter, 159 N.H. 136, 141, (2009)); see also White v. Auger, 171 N.H. 660,

29 666-67 (2019). Thus, the legislature presumably intended to ban something

in the fourth concept that was not already covered by the first three.

But I am unable to discern what this might be given the substantial—if

not total—overlap between the first three concepts and the fourth. How, if at

all, is teaching that individuals should be discriminated against on the basis

of race different than teaching that individuals should not be treated

without regard for race? And how is teaching that certain individuals cannot

treat others without regard for sex different than teaching that certain

individuals are inherently sexist? The text provides no clues, thus rendering

it impossible to interpret the fourth concept consistent with the New

Hampshire Supreme Court’s rules of statutory construction.

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.

2. Teaching

The Amendments are also fatally flawed because they do not

sufficiently explain when a teacher will be subject to sanctions for teaching a

30 banned concept. The Amendments provide that students may not be “taught,

instructed, inculcated or compelled to express belief in, or support for” the

banned concepts, but they lack clarity as to what it means to “teach” a

banned concept.

In attempting to construe the Amendments, the defendants cite to

various dictionary definitions but do not grapple with the individual meaning

of the word “taught” (or, for that matter, any of the other enumerated verbs).

Rather, the defendants read the Amendments’ text as collectively prohibiting

“the affirmative and deliberate act of conveying information with knowledge

of what information is being conveyed.” Doc. 84-1 at 27.

I cannot accept the defendants’ reading of the Amendments because it

fundamentally ignores the separate prohibitions against teaching,

instructing, inculcating, and compelling and instead construes each

prohibition as essentially synonymous. See id. (asserting that each of the

prohibited acts relies on “similar dictionary definitions”). Adopting such a

construction would violate “the well-recognized principles of statutory

construction that all words of a statute are to be given effect, that the

legislature is presumed not to use words that are superfluous or redundant,

and that when the legislature uses two different words, it generally means

two different things.” State v. Bakunczyk, 164 N.H. 77, 79 (2012). Thus,

31 contrary to the defendants’ argument, “taught” ordinarily means something

different from “instructed,” “inculcated,” or “compelled to express belief in, or

support for.” But what exactly is prohibited by the word “taught” is far from

clear.

While teaching can sometimes consist of merely instructing students on

objective facts, teachers often employ more nuanced techniques designed to

encourage the development of critical thinking skills. For example, teachers

may attempt to stimulate discussion by asking students pointed questions or

encourage debate by presenting students with ideas contrary to their own.

When such techniques are used to explore a banned concept, it is impossible

to know whether a banned concept has been impermissibly taught.

Take, for example, a teacher who decides to teach the Supreme Court’s

most recent affirmative action decision and touts the dissenters’ analysis

while paying limited attention to the majority opinion. See generally

Students for Fair Admissions, Inc., 600 U.S. at 190. The teacher may view

herself as simply teaching students about the dissenters’ method of

constitutional analysis, but a student may interpret her lesson as teaching

that the dissenters were correct. Could her discussion of the case expose her

to discipline if she does not explain that the dissenters’ analysis is wrong?

The text of the Amendments provides no hint, leaving the teacher’s fate

32 subject only to an enforcing agency’s subjective interpretation of what was

taught.

Or suppose that, during a class discussion of the affirmative action

case, a student forcefully argues that the majority’s decision was wrong and

that race-conscious remedies should be permitted to promote diversity even if

they tend to favor one group over another. Will the teacher be subject to

discipline if she fails to immediately rebuke the student? The defendants

suggest that she might, noting that teachers may sometimes be required to

offer “disclaimers” in response to student statements to avoid running afoul

of the Amendments. Doc. 108 at 4-6, 10. When the failure to issue a

disclaimer constitutes teaching, however, remains a mystery.

A similar ambiguity as to what it means to teach a concept proved fatal

in Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967).

In that case, the Supreme Court invalidated a statute that banned state

universities from employing any person who “by word of mouth or writing

wilfully and deliberately advocates, advises or teaches the doctrine that the

government of the United States . . . should be overthrown or overturned by

force, violence or any unlawful means.” N.Y. CIV. SERV. § 105(1)(a). The Court

explained that, because “advocacy of the doctrine of forceful overthrow is

separately prohibited,” the prohibition against teaching the doctrine could

33 ostensibly extend to a professor who merely “informs his class” about the

banned doctrine, without in any way advocating for that doctrine. Keyishian,

385 U.S. at 600. For this reason, the Court concluded that the statute was

“plainly susceptible of sweeping and improper application” and

unconstitutionally vague. Id. at 599.

So too here, the Amendments’ ambiguity as to when a concept is

“taught” means that teachers could be prohibited from merely discussing

ideas that fit within the banned concepts. 9 Given the unclear line between

acceptable and unacceptable discussions, teachers have virtually no way of

knowing whether a lesson that touches upon the banned concepts violates the

Amendments. 10 Teachers are thus left in the untenable position of having to

9 Indeed, the Amendments here implicate even greater vagueness concerns than those at issue in Keyishian given that, as I will explain, the Amendments do not contain a scienter requirement. Cf. id. at 600 (finding that the word “teach” rendered the statute impermissibly vague, even though the statute only prohibited “wilful[]” and “deliberate[]” teaching).

10 The safe harbor for discussions involving the “historical existence” of banned concepts “as part of a larger course of academic instruction” does little to guide teachers as to what they may and may not do. As an initial matter, it applies only to historical discussions and therefore has no bearing on discussions of current matters. Moreover, the safe harbor still requires teachers to guess as to when a permissible discussion of a banned concept goes too far and becomes prohibited teaching. See, e.g., Santa Cruz Lesbian & Gay Cmty. Ctr. v. Trump, 508 F. Supp. 3d 521, 544 (N.D. Cal. 2020) (“The line between teaching or implying (prohibited) and informing (not prohibited) ‘is so murky, enforcement of the ordinance poses a danger of arbitrary and

34 wager their careers on a guess or else refrain from discussing matters that

implicate the banned concepts altogether. This lack of clarity renders the

statute unconstitutionally vague.

3. Extracurricular Speech

Another profound problem with the Amendments is that they do not

provide sufficient guidance as to when teachers may be subject to sanctions

for engaging in speech that is protected by the First Amendment. Teachers do

not have the right to control their curricular speech, Doc. 63 at 15-16, but nor

do they “shed their constitutional rights to freedom of speech or expression at

the schoolhouse gate,” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 506 (1969). Whether and to what extent the First Amendment protects a

teacher’s extracurricular speech is a context-specific and fact-intensive

question that turns on the balance of the interests involved. See generally

Connick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391

U.S. 563, 568 (1968). Even though the First Amendment does not protect a

teachers’ curricular speech, it is beyond dispute that at least some

interactions between students and teachers are protected by the First

Amendment, even if they occur on school grounds or during school hours. See,

discriminatory application.’”) (quoting Hunt v. City of Los Angeles, 638 F.3d 703, 712 (9th Cir. 2011)).

35 e.g., Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 529-30 (2022)

(concluding that a football coach’s post-game, on-field prayers with students

were entitled to First Amendment protection); Wood v. Fla. Dep’t of Educ.,

No. 4:23cv526, --- F. Supp. 3d ----, 2024 WL 1536749, at *17 (N.D. Fla. Apr. 9,

2024) (concluding that a teacher’s decision to share her pronouns at the start

of class was protected by the First Amendment).

On their face, the Amendments apply whenever and wherever a

teacher instructs a student on a banned concept and thus implicate

constitutionally protected interactions between teachers and students.

Indeed, the defendants made their intention to apply the Amendments to

extracurricular speech clear by asserting in the July 2021 FAQs that the

Amendments “apply to all activities carried out by public schools in their role

as public schools, including extra-curricular activities that are part of the

school’s work.” Doc. 36-8 at 2. Accordingly, as the plaintiffs note in their brief:

The Amendments restrict speech at sporting events, bus rides to and from events, chess competitions, yearbook club meetings, newspaper meeting discussions, orchestra rehearsals, and all spontaneous run-ins between students and teachers outside the classroom and in the halls of the school. The Amendments cover off-campus, non-instructional interactions with students, often without pay and frequently in response to searching questions, at student-led initiatives such as Young Republicans Club, the Gay-Straight Alliance, and Students for Racial Justice.

Doc. 83-2 at 61.

36 Because the Amendments apply broadly to both curricular and

extracurricular speech, they potentially intrude on many informal

communications between teachers and students that could be entitled to

constitutional protection. Where, as here, a law “is capable of reaching

expression sheltered by the First Amendment, [due process] demands a

greater degree of specificity than in other contexts.” Smith v. Goguen, 415

U.S. 566, 573 (1974). Yet, for the reasons I have explained, the Amendments

fail to draw the bright line between covered and noncovered speech that the

Constitution demands of laws affecting free speech. See Ozonoff v. Berzak,

744 F.2d 224, 231 (1st Cir. 1984) (“Precision of regulation must be the

touchstone in an area so closely touching our most precious freedoms.

Without precision, an inhibitory regulation may prevent speech far beyond

the regulation’s intent.”) (cleaned up).

4. Scienter

As the Supreme Court has recognized, a “scienter requirement may

mitigate a law’s vagueness, especially with respect to the adequacy of notice

to the complainant that his conduct is proscribed.” 11 Vill. of Hoffman Ests.,

11 Scienter is the “degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission; the fact of an act’s having been done knowingly, esp[ecially] as a ground for civil damages or criminal punishment.” Scienter, BLACK’S LAW DICTIONARY (11th ed. 2019).

37 455 U.S. at 499; see also Hill v. Colorado, 530 U.S. 703, 732 (2000). The

defendants concede that the Amendments do not contain an “express scienter

requirement,” but they assert that this omission is largely irrelevant because

the act of teaching “requires that a teacher affirmatively and deliberately

convey information and know what that information is.” Doc. 84-1 at 35.

I am unpersuaded by the defendants’ argument because it

misconstrues the role that scienter plays in mitigating vagueness concerns.

The value of a scienter requirement is that it limits a law’s scope to those

who knowingly engage in a particular course of conduct. Even if I were to

accept the defendants’ contention that a teacher can violate the

Amendments only by deliberately conveying information to her students, 12

the absence of a true scienter requirement leaves teachers vulnerable to

sanctions if they inadvertently cross the boundary between permissible and

prohibited speech.

12 For the reasons I have explained, the defendants’ assertion that the Amendments’ prohibition against teaching applies only to the “affirmative and deliberate act of conveying information with knowledge of what information is being conveyed” rests on an untenable reading of the text. Id. at 27. Given the inherent ambiguity as to when a concept is “taught,” a teacher could violate the Amendments without affirmatively and deliberately instructing students on a particular concept—for example, by failing to offer a disclaimer in response to a student’s advocacy for a banned concept, which the defendants concede could form the basis for liability. Doc. 108 at 4-6, 10.

38 The First Circuit’s decision in United States v. Nieves-Castano, 480

F.3d 597, 603 (1st Cir. 2007), illustrates the way in which a scienter

requirement can mitigate the impact of an otherwise vague statute. There,

the court considered a vagueness challenge to a criminal statute that

prohibited a person from knowingly possessing a firearm “at a place that the

individual knows, or has reasonable cause to believe, is a school zone.” Id. at

602 (quoting 18 U.S.C. § 922(q)(2)(A) (amended 2015)). Because the statute

defined the term “school zone” broadly as “the area ‘within a distance of

1,000 feet from the grounds of a public, parochial[,] or private school,’” the

defendant argued that the statute failed to provide objective criteria that a

person could use to determine when they had entered a school zone. Id. at

603 (quoting 18 U.S.C. § 921(a)(25)(B)). In rejecting this argument, the court

emphasized the importance of the statute’s scienter requirement by stating

that the defendant “could only have been convicted if she knew or reasonably

should have known that her possession of the firearm was within a school

zone, and this scienter requirement ameliorates any vagueness concerns.” Id.

The legislation at issue in this case differs from the statute before the

court in Nieves-Castano because teachers can face discipline for violating the

Amendments by conveying banned information to a student without any

proof that they have knowingly crossed the line that separates permissible

39 and prohibited speech. Because teachers can be found to have crossed that

indistinct line without any finding of scienter, the vagueness of the

Amendments is compounded rather than mitigated.

C. Impact

For the reasons I have explained, the Amendments are vague in ways

that cannot be resolved through ordinary statutory interpretation. The record

demonstrates that these ambiguities invite arbitrary enforcement and

deprive teachers of fair notice, not only in theory but also in practice.

1. Arbitrary Enforcement

Because the Amendments fail to establish “minimal guidelines to

govern [their] enforcement,” officials are free to “pursue their personal

predilections” when applying the law. Kolender v. Lawson, 461 U.S. 352, 358

(1983) (quoting Goguen, 415 U.S. at 574-75 (1974)). Indeed, the record

demonstrates that those charged with enforcing the law have relied on

Commissioner Edelblut’s personal opinions on what is appropriate

instruction, as expressed in his op-ed articles, to guide their efforts.

The articles, which were written by Edelblut in his personal capacity,

identified various actions by teachers and instructional materials that he

viewed as problematic. Doc. 85-22 at 4; Doc. 85-41 at 3-4. The June 2021

article advocates for the Amendments by asserting that they are necessary to

40 address content that undermines American values and teaches students “to

be racists,” such as Kendi’s book How to Be an Antiracist. Doc. 85-22 at 4.

The April 2022 article does not reference the Amendments at all, but rather

identifies various classroom materials pertaining to race and sexuality that,

in Edelblut’s view, “undermin[e] the sacred trust that educators hold” by

“compromis[ing] the values of families.” Doc. 85-41 at 4. Neither article

explicitly states that the identified content runs afoul of the Amendments, let

alone explains how it conflicts with the law.

Despite the fact that the articles offer minimal interpretive guidance,

Department of Education officials have referred educators to them as a

reference point. For example, after showing two music videos to her class as

part of a unit on the Harlem Renaissance, Alison O’Brien, a social studies

teacher at Windham High School, was called into a meeting with her

principal and informed that she was being investigated by the Department of

Education in response to a parent’s complaint. Doc. 85-12 at 3. Department of

Education Investigator Richard Farrell recommended that Windham’s

administrators consult Edelblut’s April 2022 opinion article to understand

the context of the investigation against O’Brien, without otherwise explaining

why O’Brien’s lesson warranted investigation. Id. at 5-6. After witnessing her

41 experience, O’Brien’s colleagues grew anxious about facing similar actions

themselves and modified their lesson plans accordingly. Id. at 6.

The threat of arbitrary enforcement based on Edelblut’s personal views

has impacted teachers even in the absence of a formal complaint. For

example, teachers at Keene Middle School planned to have their eighth

graders read another one of Kendi’s books, Stamped: Racism, Antiracism, and

You: A Remix of The National Book Award-winning “Stamped from the

Beginning”. Doc. 85-17 at 3. The school purchased 250 copies of the book but,

after reading Edelblut’s June 2021 article criticizing one of Kendi’s other

books, the planned reading was cancelled. Id. at 3-4.

As one teacher at the school explained, he and his colleagues were

confused about what “kinds of teaching could take place and what kind[s] of

materials could be used” under the Amendments and looked to “publicly

available comments from the Commissioner” for guidance. Id. at 4. After

reading Edelblut’s June 2021 op-ed, the teachers concluded that Edelblut

“believed the work of Dr. Kendi violated the [Amendments].” Id. Accordingly,

the teachers decided against the planned reading. Id.

As these examples demonstrate, the Amendments’ ambiguities leave

significant gaps that both officials and teachers understand can only be filled

by those charged with their enforcement. By referring educators to Edelblut’s

42 articles for guidance, the department relies on Edelblut’s personal views to

serve as gap-filler and therefore threatens teachers with enforcement on an

“ad hoc and subjective basis” guided by the “personal preferences” of an

unelected official rather than clearly delineated statutory standards.

Grayned, 408 U.S. at 109, 113 n.22.

2. Insufficient Notice

Vague laws have been likened to a sword of Damocles, dangling above

the heads of those it governs and threatening to drop without any warning.

As Justice Marshall observed in Arnett v. Kennedy, the “value of a sword of

Damocles is that it hangs—not that it drops. For every employee who risks

his job by testing the limits of the statute, many more will choose the

cautious path and not speak at all.” 416 U.S. 134, 231 (1974) (Marshall, J.,

dissenting).

Justice Marshall’s remarks ring true here. As the record demonstrates,

uncertainty surrounding what the Amendments do and do not prohibit has

caused teachers to err on the broad side of caution by self-censoring their

lesson plans and, in some circumstances, leaving the profession altogether.

Consider, for example, Jennifer Given, a former high school social

studies teacher at Hollis/Brookline High School with 19 years of experience in

the field. Doc. 85-15 at 3. Based on the “constant confusion with students and

43 parents” caused by the Amendments, Given felt the need to significantly

modify her teaching methods “out of fear that [she] would be accused of”

violating the Amendments, regardless of whether she was actually doing so.

Id. at 3. For example, Given stopped assessing student performance through

essay and open-ended short answer questions out of concern that those

methodologies might be misinterpreted by students who believed they had to

agree with a certain position to score well on an assessment. Id. Given also

significantly restricted open class discussion and stopped allowing her

students to choose their own topics for research papers out of a concern that

the students would include subject matter in their papers that could violate

the Amendments. Id. at 3-4. Additionally, Given refrained from “analogizing

material to students’ own experiences and interests”—despite the

pedogeological value of doing so “in social studies curriculums and historical

courses where students can easily believe historical events only happened in

the past”—out of fear that such discussions could lead to a complaint against

her. Id. at 4. Given found that these changes negatively impacted student

learning and resulted in decreased class participation. Id. at 3-4. Given was

so troubled by this fact, and so frustrated by the difficulties presented by the

Amendments, that she decided to leave teaching altogether. Id. at 3.

44 Patrick Keefe, a high school English teacher at Campbell High School,

has also modified his teaching practices out of fear of violating the

Amendments. Doc. 85-13 at 3. For example, Keefe’s students read the novel

Beloved, by Toni Morrison, which examines the “destructive legacy of

slavery” through the story of a formerly enslaved woman in the post-Civil

War period. Id. at 5. Prior to the Amendments’ passage, Keefe would attempt

to place the novel “in a contemporary framework” by inviting students to

consider, for example, whether the legacy of slavery is evident in the modern

world or how the novel’s themes relate to current events like the Black Lives

Matter movement. Id. Now, however, Keefe is uncomfortable engaging with

students in this way because he worries that it could be “misunderstood” as

implying that “there is a ‘correct’ answer to [his] question[s]” or that students

are “‘require[ed]’ . . . to agree” with the premise of those questions. Id. at 5-6.

Keefe fears that, because “parents and students misunderstand instruction

techniques, such as using the Socratic method, playing devil’s advocate, or

seemingly agreeing or disagreeing with a student in order to draw out

analytical thinking,” he might be subject to a complaint based on a

misinterpretation of his lesson. Id. at 6. In an attempt to assuage his fears,

Keefe asked the school administration for additional guidance on how to

comply with the Amendments, but he “was told there was none available

45 other than the Attorney General’s Frequently Asked Questions.” Id. Given

the uncertainty as to the law’s reach, Keefe is unsure how to engage in “any

contemporary investigation of race” without violating the Amendments and

feels compelled to avoid the topic altogether, despite the “valuable analytical

training” that the exercise provides to students. Id.

The Amendments have chilled extracurricular speech as well. Ryan

Richman, a high school history teacher at Timberlane Regional High School,

has censored not only his lesson plans but also his interactions with students

through his role as a faculty advisor for the school’s Model United Nations

team. Doc. 85-18 at 3-4. Richman explains that he has restricted what he

says “around the students in their research for competitions, on the way to

competitions, and in everyday interactions”—conversations which could be

subject to First Amendment protection—out of fear that he might violate the

Amendments by commenting on the sort of “controversial topics” that

frequently arise at Model UN competitions. Id. at 4. As a result of these

constraints and Richman’s concerns about the effects that they are having on

his students, Richman is considering resigning. Id.

These examples are only illustrative of the wide-ranging difficulties

that teachers face in attempting to conform their behavior to the vague

strictures of the Amendments. Without adequate notice of what the

46 Amendments prohibit, teachers are incentivized to steer well clear of

anything that could be construed as violating the Amendments, even if it

means utilizing less effective teaching methods. As a result, the work

teachers do best is inhibited, and students are forced to bear the costs of the

Amendments’ ambiguity.

IV. REMEDY

Having concluded that the Amendments’ prohibitions against teaching

banned concepts are unconstitutionally vague, I must consider which, if any,

parts of the Amendments may nonetheless be upheld. The Amendments are

subject to a severability clause that requires courts to preserve any parts or

applications of the Amendments that are unaffected by a judicial

determination that other parts or applications are invalid. 13 Relying on this

clause, the defendants argue that, if the plaintiffs’ vagueness claim has

merit, it should be resolved by invalidating only subsection IV of RSA

§ 193:40, which treats any violation of RSA § 193:40 as a violation of the

educator code of conduct. The defendants appear to base this argument on

their view that the Amendments can only be unconstitutionally vague if

13 The clause states that “[i]f any provision of sections 297-298, or the application of any provision to any person or circumstance is held to be invalid, the remainder of such sections, and their application to any other persons or circumstances shall not be affected thereby.” HB2 § 91:299.

47 teaching a banned concept can be sanctioned as a code of conduct violation. I

am unpersuaded by this argument because the premise on which it is based

is false.

The Amendments are vague not because they subject teachers to severe

professional sanctions, but because they fail to provide teachers with

sufficient notice of what is prohibited and raise the specter of arbitrary and

discretionary enforcement. Invalidating RSA § 193:40, IV would fail to

address these concerns because the plaintiffs would continue to be directly

barred from teaching the banned concepts by the remaining subsections of

RSA § 193:40. They would also be indirectly prohibited from teaching the

banned concepts by RSA §§ 354-A:32 and 354-A:33, which bar public schools

from teaching the concepts, because schools would be required to enforce the

prohibitions against their teachers to avoid damages actions. And, for the

reasons I explained, teachers who aid and abet their employers in teaching

the concepts would themselves continue to face the prospect of individual

damages actions under RSA § 354-A.

Thus, although striking down RSA § 193:40, IV would certainly lessen

the harm that teachers would face for teaching a banned concept, its

invalidation alone would not free teachers from the need to guess as to

whether they are acting unlawfully. Nor would it provide those charged with

48 enforcing the Amendments with the guidance they need to prevent arbitrary

enforcement. Accordingly, I cannot resolve the plaintiffs’ vagueness claim

merely by invalidating RSA § 193:40, IV. Instead, the constitutional

infirmities I have identified require the invalidation of not only the sanction

provided by RSA § 193:40, IV, but also the vague provisions themselves—

RSA §§ 354-A:31, 354-A:32, and 193:40. 14

V. CONCLUSION

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. Thus, the Amendments violate the Fourteenth

Amendment to the U.S. Constitution.

Although the plaintiffs have sought both declaratory and injunctive

relief, I have no reason to believe that the defendants will fail to respect this

14 The plaintiffs do not expressly challenge RSA §§ 354-A:29 or 354-A:33, nor do those provisions include the vague language that plagues RSA §§ 354- A:31, 354-A:32, and 193:40. Thus, I decline to invalidate these provisions. See N.H. Democratic Party v. Sec’y of State, 174 N.H. 312, 331 (2021) (explaining that under New Hampshire law, courts are to “presume that the legislature intended that the invalid part shall not produce entire invalidity if the valid part may be reasonably saved” and consider “whether the unconstitutional provisions of the statute are so integral and essential in the general structure of the act that they may not be rejected without the result of an entire collapse and destruction of the statute”) (quoting Associated Press v. State, 153 N.H. 120, 141 (2005)).

49 court’s ruling that the Amendments are unconstitutional on their face.

Accordingly, I grant the plaintiffs’ request for declaratory relief but

determine that injunctive relief is not necessary at the present time. See

Wooley v. Maynard, 430 U.S. 705, 711 (1977) (explaining that injunctive

relief is not required if the plaintiffs’ interests will be protected by a

declaratory judgment).

For the reasons discussed, the plaintiffs’ motion for summary judgment

(Doc. 83) is granted as set forth herein. The defendants’ cross-motion for

summary judgement (Doc. 84) is denied.

SO ORDERED.

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

May 28, 2024

cc: Counsel of Record