In September 2020, in the midst of a panic about Critical Race Theory (CRT) infiltrating the government and schools, former President Donald Trump issued an executive order. The executive order, however, does not take on CRT directly — or even related concepts like structural racism, implicit bias, and affirmative action. Instead, the order prohibited federal funding for programs that promote general concepts such as "an individual should be discriminated against… solely or partly because of his or her race" or "an individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive." Would discussions of implicit bias violate this provision? Federal employees and contractors were left to guess. 

President Joe Biden, shortly after his inauguration, repealed Trump's executive order. 

That's when the New Hampshire legislature got to work. In 2021, Governor Chris Sununu (R) signed a new law, modeled after Trump's executive order, that prohibited government employees, including public school teachers, from promoting "divisive concepts." It prohibited students from being "taught, instructed, inculcated or compelled to express belief in, or support for" a series of general concepts pulled from Trump's executive order, including:

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

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

Teachers found to have violated the law could lose their teaching licenses and, as a result, their careers. Under the law, anyone who feels the "divisive concepts" prohibition has been violated can file a civil lawsuit or a complaint with state officials.

The law, however, does not define key terms. Does a classroom discussion of various views count as "instruction"? Does a lesson on affirmative action violate the ban on instruction suggesting a person "should be discriminated against… solely or partly… because of his or her… race"? Teachers were left to guess. 

In April 2022, a New Hampshire parent complained that Alison O’Brien, a high school social studies teacher, violated the divisive concepts law by showing two videos — “Formation” by Beyoncé and “This is America” by Childish Gambino — as part of a unit on the Harlem Renaissance. O'Brien said she showed the videos as part of a lesson where students "listen to Strange Fruit by Billie Holiday, read poetry, and study paintings by Harlem Renaissance artists." 

Then, O'Brien asked the students if they saw "any connections between these two modern music videos and the art and culture of the Harlem Renaissance." O'Brien explained in a declaration filed as part of a lawsuit that using "modern examples of artists that students are aware of helps them to make connections to historical events such as the Harlem Renaissance in a manner that is relevant to them so they can better understand, analyze, and critique the information." 

The parent who complained claimed the music videos were "offensive," too focused "on the oppression of just one group," and "not a balanced view of history.” In response, O'Brien was pulled out of class by the Assistant Principal and asked to confirm if she had shown "This Is America" to students. Later, O'Brien was summoned to the Principal's office and told that the Department of Education was "investigating" her conduct. 

The investigator advised the officials at the high school to read a recently published op-ed by New Hampshire Education Commissioner Frank Edelblut about the law to understand the "context" of the investigation into O'Brien.

In the op-ed, Edelblut does not actually discuss the divisive concepts law. But Edelbut asserts that certain "activist educators" are "knowingly dismantling the foundations of a value system" built by parents. Edelblut's op-ed linked to a 68-page document of emails, classroom materials, and text messages that he says are examples of inappropriate classroom instruction. There is no explanation of how any of this relates to New Hampshire law. O'Brien was given a copy of the op-ed. 

The investigation into O'Brien became known to her colleague. One "decided not to show a clip from a popular TV show because she did not want to face the same kind of scrutiny." O'Brien never heard anything further from the Department of Education or received an explanation as to why the videos might have violated the law. 

Various educational groups sued, alleging that the divisive concepts law was unconstitutional. On Tuesday, United States District Judge Paul J. Barbadoro struck down the law, finding that it violated the 14th Amendment. 

Barbadoro, citing the experience of O'Brien and other teachers, ruled that the law was unconstitutionally vague. The law represents "viewpoint-based restrictions on speech" but does not "provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement." As such, it violates the due process protections of the 14th Amendment. 

Barbadoro's reasoning, if it is accepted by other courts, could have large implications because similar laws have been passed in several other states. 

Oklahoma 

In Oklahoma, the American Civil Liberties Union (ACLU) is leading a lawsuit against HB 1775, which prohibits teachers and administrators from including certain race-related topics in their classes. The prohibited topics mirror those in Trump's executive order. 

The lawsuit, filed in October 2021, asks that the court “declare the bill unconstitutional under the First and 14th Amendments.” Emerson Sykes, the lead attorney for the ACLU, argues that the law is “unconstitutionally vague, overbroad and viewpoint discriminatory.” District Judge Charles Goodwin, who was appointed in 2018 by former President Trump and was deemed “unqualified” by the American Bar Association in 2017, is presiding over the case. 

Oral arguments in the case were presented on December 4, 2023. Earlier this month, the plaintiffs for the case “asked a federal judge to move along the proceedings.” Goodwin then scheduled a “status conference” for June 7, the Oklahoman reported. 

Tennessee 

In July 2023, the Tennessee Education Association filed a federal lawsuit against the state's “Prohibited Concepts Ban.” The ban, which was signed into law in May 2021, “prohibits the inclusion of 14 prohibited concepts in educational curriculum, including those dealing with race, gender and other subjects.” The language in the law is drawn from Trump's executive order. 

The lawsuit argues that the law is “unconstitutionally vague and that the state’s enforcement plan is subjective.” The case also argues that it “interferes with instruction on difficult but important topics included in the state’s academic standards,” saying that the law “encourages arbitrary and discriminatory enforcement and violates the 14th Amendment.” 

Earlier this month, a judge denied a motion by the state of Tennessee to dismiss the case and scheduled a June 17 meeting with the case attorneys, Chalkbeat Tennessee reported. 

Florida

In August 2022, students and educators represented by the ACLU filed a lawsuit against Florida’s HB 7. The law, known as the Stop WOKE Act, limits the way teachers can discuss race in the classroom and prohibits classroom instruction “from being used to indoctrinate or persuade students in a manner inconsistent with certain principles or state academic standards.” 

The lawsuit argues that the law is “classroom censorship” and “severely restricts Florida educators and students from learning and talking about issues related to race and gender in higher education classrooms.” The lawsuit also argues that the law “violates the First and 14th Amendments by imposing viewpoint-based restrictions on educators… and students that are vague and discriminatory.” 

In November 2022, a federal judge blocked enforcement of the law in higher education settings. A hearing for the lawsuit is scheduled for June, Politico reported. 

Arkansas 

A law prohibiting “indoctrination” in Arkansas schools is being challenged by two students and two teachers. The LEARNS Act was signed into law by Governor Sarah Huckabee Sanders (R) in March 2023. A section of the law prohibits topics like “indoctrination,” “critical race theory,” or curriculum “encourag[ing] discrimination” from being taught in schools. The attorneys for the plaintiffs argued that the law is “too vague, and creates a chilling effect on teaching.” 

Earlier this month, a federal judge “issued a narrow preliminary injunction” against the law and “ruled Arkansas cannot prevent two high school teachers from discussing critical race theory in the classroom,” but did not fully block the state from enforcing the law in schools, the AP reported. On May 14, the office of Arkansas Attorney General Tim Griffin (R) filed a motion to dismiss the lawsuit.