BOSTON (CN) — A New Hampshire law designed to prevent public school students from being taught “woke” ideas went before the First Circuit Tuesday, with a three-judge panel firing tough questions at both sides during oral argument.
The law, enacted in June 2021, prohibits teaching children that members of a specific social group are inherently inferior to another group or are inherently racist, sexist, or oppressive. The law also bans teaching kids that another group should be discriminated against or that they should not treat other groups equally.
A parent or student who feels that a teacher has violated the law can file a complaint, and a teacher could be sanctioned by the state education board as a result.
A teachers’ union challenged the law, and in May 2024 a lower court held that it was unconstitutionally vague because it was unclear how it would apply to topics such as affirmative action.
The law (which also applies to training of public employees) is part of a widespread movement to rein in critical race theory and related concepts. Eighteen other states have similar laws or regulations on the books, according to a study by Education Week: Alabama, Arkansas, Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Virginia.
Similar bills have been proposed or are working their way through the legislature in Connecticut, Indiana, Missouri, New Jersey, North Carolina and Wyoming. Twenty additional states have defeated such proposals.
As of January 2024, only one complaint had been filed against a teacher in New Hampshire. No sanctions have been imposed.
Because the law hasn’t been applied to penalize anyone, the teachers must show that it’s vague in all its possible applications — unless it implicates a substantial amount of First Amendment activity, the state’s assistant attorney general, Mary Triick, told the court.
Representing the teachers’ union, Gilles Bissonnette of the ACLU argued that it wasn’t necessary to show a First Amendment issue. But when U.S. Circuit Judge William Kayatta asked him to cite a case to that effect, he responded, “I haven’t done that research.”
Kayatta, a Barack Obama appointee, seemed shocked and pointed out that this was a central issue in the case. “And you didn’t do the research?”
Bissonnette then backtracked and said that he did do the research but he couldn’t find a case.
The judges were also unimpressed when Charles Moerdler, representing a separate group of teachers, made a similar argument with an impassioned plea that “children in New Hampshire are suffering” from not being exposed to the woke concepts and this constitutes an “emergency.”
Moerdler, of New York’s Stroock & Stroock & Lavan, said, “I was a Holocaust survivor. I’ve been there before. I’ve seen books banned. I don’t want to go back.”
Both Kayatta and U.S. Circuit Judge Seth Aframe told Moerdler that he was wrong on the law. “That’s not how the world works,” Aframe said.
“I should perhaps be less emotional,” Moerdler admitted before U.S. Circuit Judge Lara Montecalvo, a Joe Biden appointee, told him curtly, “Your time is up.”
But while Triick seemed to score a clear victory on the standard to be applied, the judges seemed uncertain whether the law in fact implicated a substantial amount of First Amendment activity.
The judges cited a 2022 Supreme Court case holding that a high school football coach had a First Amendment right to kneel in prayer on the field after games. “Suppose I give a prayer that suggests that Judaism is the best form of religion?” Aframe, a Joe Biden appointee, asked.
What about “a prayer to the virtues of affirmative action?” Kayatta wondered.
“You can pray, but you can’t teach or inculcate,” Triick replied. “We don’t hire teachers to lead prayers.”
But Aframe commented that the teachers’ argument “resonates with me … some. Teaching is a very fluid process. It’s not just standing there and reading pre-determined thoughts. There’s engagement, discussion, back and forth. Suppose a student makes a comment that’s a banned concept. Have I ‘taught’ it unless I say that comment can’t be said? They want to do a class that is engaging and thought-provoking. Affirmative action is current in the news and of interest to people. They want to talk about it but they don’t want to be fired.”
Triick pointed out that the law allows teaching historical facts, including other people’s opinions. “You can teach about Nazism and affirmative action,” she said.
Montecalvo asked, “When does teaching about that turn into teaching a banned concept?”
“It doesn’t,” Triick said. “Teaching facts doesn’t violate the law.”
“The problem here — if there is a problem — is that these words are so vague that nobody knows,” Aframe commented. “You have to stay away from hot zones. The areas you can teach become really small because we haven’t given you enough direction.”
Triick became frustrated and seemed to feel that the judges were nitpicking about a common-sense statute. “It’s clear,” she said. “You can teach about affirmative action but you can’t teach that people in different groups should be discriminated against. These are not confusing concepts. You shouldn’t teach that that’s the way the world should be.”
Aframe followed up by asking if he could teach that blind people have better hearing because they become more reliant on other senses.
“You can teach the facts,” Triick said. “But not that they’re inherently superior.” The judges’ hypotheticals amounted to “fringe edges where there might be a question, not core conduct” that implicates a substantial amount of First Amendment activity, she insisted.
And the law isn’t so vague that teachers can’t reasonably figure out where the line is, Triick argued.
“If the state said that teachers shouldn’t say that Nazi ideas were good, nobody would be concerned about that,” she commented. “When the state hires the speech, we can set the bounds of what is to be taught.”