FAQ: Talking & Teaching About Racism in Schools

How the “banned concepts” law might affect your community

We are better as a state and community when we can have hard conversations and learn from them. That’s why, as school starts this fall, the ACLU of New Hampshire continues to be concerned about the “banned concepts” legislation, which will limit the ability of public school students to have important discussions about race and gender, and puts teachers at risk of professional discipline and lawsuits if they choose to cover important topics like racism or slavery.

We oppose this racist law, and will not stop fighting for every student’s right to an inclusive education—one that gives a full picture of America and its history.

• A: In a nutshell, this law makes it more difficult for schools and state workplaces to meaningfully discuss things like systemic racism, sexism, and implicit bias. This is because the law – perhaps purposefully – is ambiguous as to what is and is not banned, and also imposes harsh penalties on educators and school administrators who are believed to violate its provisions. It even allows ordinary citizens to sue teachers in court if they think teachers violated the law, even when they were just doing their job.

  Because of this vague language and stiff penalties, some educators will inevitably avoid and not engage in these important topics because they fear being the subject of a complaint or lawsuit from an angry parent who doesn’t like what’s in their curriculum.

• A: In short: this is virtually impossible to answer because the law is ambiguous. We’ve heard from educators across the state who are rightfully afraid they will be accused of breaking this law because they have no idea what they can and cannot teach under it. And that’s the point: this law causes educators to not engage in important topics at all because they fear being the subject of a complaint or lawsuit.

  These important topics potentially include things like the concepts of implicit bias, systemic racism, white privilege, or even historical events like slavery or the genocidal impact of colonization on Native Americans. Teachers fear whether they can even have their students can read and discuss books like “Huckleberry Finn” or the film “Eyes on the Prize” about Martin Luther King Jr. and the civil rights movement of the 1960s.

  The law has been so misunderstood since its passage that educators have been told to remove books from their classroom libraries that don’t violate the law just to avoid parent complaints. They have been told to remove posters from their classroom walls because they are “too political.”

• A: On its face, the law might appear to help encourage anti-discrimination, but a deeper dive tells us that the opposite is actually true.

  For example, there appears to be a ban in this law on teaching the idea that someone might be inherently racist or sexist, “whether consciously or unconsciously.” However, we know that things like implicit biases (unconscious stereotypes or attitudes we attribute toward people) exist. Are concepts like implicit bias covered under the law? It might appear from this bill language that Granite Staters would be prohibited from learning about the implicit biases, or how to identify them.

• A: In July 2021, the N.H. Department of Justice released an FAQ document that they called “guidance” on the law’s impact. The FAQ is high level and fails to provide extensive and concrete examples of what is covered and what is not covered under the law. Even in the face of multiple requests, the State has declined to provide more specific guidance, and it appears that none will be forthcoming in the future. As a result, educators still do not know if these topics may be taught.

  This lack of clarity has been particularly frustrating: if our state government cannot (or is unwilling to) answer basic questions as to what is banned and what is not under the bill’s text, how is an educator supposed to know on the ground what speech is allowed and what is not?

• A: Thank you for wanting to take action! Right now, efforts on diversity, equity, and inclusion are happening on the local level. Please contact your school board and tell them to support diversity, equity, and inclusion efforts at your local schools.