September 22, 2022
One of the sillier laws enacted by the New Hampshire legislature and signed into law by Gov. Sununu last session was one that prohibits teachers from discussing “divisive concepts.” It didn’t take long for the ACLU and the state teachers’ union to take the State to federal court to challenge the statute.
The challenge is not, however, based primarily on the First Amendment’s right to freedom of speech, since the U.S. Supreme Court has ruled that public officials do not have an unfettered right to speech while engaging in their official duties. The crux of the ACLU’s argument is that the statute is unconstitutionally vague. The Fourteenth Amendment, after all, prohibits laws that don’t make clear what conduct is and is not forbidden.
In addition, the statute lacks a “scienter” provision. In other words, it doesn’t specify the mental state that the teacher must have in order to violate the law. Must a teacher act purposefully? Or can she be found in violation of the law even if she breaks the law unintentionally?
It may be some time before the issue is resolved in the courts. In the meantime, teachers face the possibility of being punished — even having their teaching license revoked — if they’re not careful.