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Boston Globe

Appellate court weighs N.H.'s ‘banned concepts' law

The state's Attorney General's Office then On Tuesday, an attorney for the state argued that the law is clear enough and that it doesn't significantly restrict teachers' First Amendment rights, which don't apply in the classroom. Get N.H. Morning Report A weekday newsletter delivering the N.H. news you need to know right to your inbox. Enter Email Sign Up Advertisement 'We're not hiring teachers to teach [students] that people in different groups should be treated differently, or that people in different groups should receive adverse treatment or be discriminated against, or that people in one group are inherently better than people in another group,' said Mary Triick, senior assistant attorney general. 'These are not confusing concepts,' she said. Advertisement Teachers who are found to be in violation can potentially have their teachers license taken away. Triick asserted that because the law applies when teachers are engaged in instruction, the state has the right to make a policy determination about what's included in the curriculum, without infringing on their free speech rights. 'We can set the bounds of what is to be taught in our public schools,' she said. But Charles Moerdler, an attorney representing the teacher's union American Federation of Teachers of New Hampshire, told the judges the law had a chilling effect even before it went into effect. And, he said, state officials don't have policies clearly showing what constitutes teaching or instructing. 'The most important issue is enforcement in terms of vagueness,' he said. The judges questioned Triick about a few gray areas — like if a student came to see a teacher after school and asked them about affirmative action. If a teacher expressed an opinion that affirmative action was a good idea, would that be a violation of the law? What about a coach speaking to teammates? In those situations, Judge Seth R. Aframe said, an educator might end up teaching, although it might not be in their official capacity as a teacher. And the question of what constitutes 'teaching' could apply in the classroom as well, he said. 'Let's say a student makes a comment that would be a banned concept. Have I as the teacher taught it, unless I affirmatively say that comment cannot be said? Because that seems challenging and difficult,' he said. Beyond that, he pointed to the issue of vagueness that ultimately led the district court to rule the law unconstitutional. Advertisement 'The problem here is — if there is a problem — is that these words are so vague that the notice isn't there,' said Seth Aframe. 'It's not, 'Don't teach Nazism is good.' It's, 'Stay away from unknown hot zones that we, the state of New Hampshire, would like you not to teach, but we're not going to tell you what they really are.' 'The areas you can teach become really small and the things you can't become really large because we haven't given you enough direction to know the difference,' he said. The appellate court will deliberate on the case and it can decide whether to uphold or overturn the lower court's ruling. Amanda Gokee can be reached at