Jacob Goodwin: A Failure for ‘Divisive Concepts’ Legislation Is a Victory for Education
Jacob Godwin is a New Hampshire teacher who reports for The Progressive on the failed attempt to censor teacher speech.
A few minutes after the school intercom switched off following the end of day announcements, I looked down at my phone and saw the breaking news: A federal judge struck down New Hampshire’s “Divisive Concepts” law due to its vagueness.
The 2021 law was part of a nationwide push to censor teacher speech and prohibit the instruction of the complex scope of history. Overnight, topics relating to race, gender, and the legacies of racism and sexism became fraught within school districts throughout the country. Teachers who covered these grounds in their classrooms questioned if and when they might be called to an administrative office and told their services were no longer needed.
The presiding judge, Paul Barbadoro, noted in his decision that the New Hampshire law “force[s] teachers to guess as to which diversity efforts can be touted and which must be repudiated, gambling with their careers in the process.”
This resulted both in self-censorship and the enforcement by school districts of precautionary censorship to avoid legal jeopardy.
Books were taken off classroom shelves out of fear of violating the law. The New Hampshire Department of Education created a portal for reporting teachers who dared to speak up for honest, fact-based histories. A bounty was issued with a $500 reward for the first person to report a teacher.
Despite the obstacles, many teachers taught the truth and spoke out to news media, in writing, and through informal groups. These teachers did not conform under the immense pressure of the law. Others simply left the profession—a protest in itself.
As similar laws spread across the country, teachers partnered with the ACLU and the Southern Poverty Law Center to challenge the constitutionality of such measures. In Rhode Island, a law was defeated in committee, and in Arizona, it was struck down by the State Supreme Court. In Georgia, on the other hand, a law has been fully enacted, and one educator was fired for reading the children’s book My Shadow Is Purple to her class.
Assessing the varied legal strategies, Professor Derek Black of the University of South Carolina stated in 2023 that he believed the arguments addressing the chilling effect of the laws on teachers’ free speech presented the strongest cases for combatting “Divisive Concepts” laws.
Black’s analysis was prescient in New Hampshire, where Thurgood Marshall’s dissent in Arnett v. Kennedy held sway. Marshall had written in 1974, “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.” In the “Divisive Concepts” case, the judge concluded that the vaguely worded statute provided no clear guideline for determining what kind of educational efforts were allowed or prohibited, leaving district administrators to err on the side of an overly broad application of the law, not knowing when an accusation of a violation might surface. All of this adds tremendous strain on our profession and public schools, arguably the central institutions of our communities.