The New Hampshire House meets to take up the two budget bills on June 26, 2025. (Photo by Ethan DeWitt/New Hampshire Bulletin)
A coalition of school districts, a teachers union, the vice president of the Manchester NAACP, and an LGBTQ+ advocacy group are suing the state over a new law that seeks to ban diversity, equity, and inclusion policies from schools and local governments.
That law, which was added to the state’s two-year budget signed by Gov. Kelly Ayotte in June, seeks to strip out DEI programs from public schools, public universities, and government entities, and includes financial penalties for school districts that don’t comply.
Supporters of the law, passed as part of House Bill 2, say it will remove policies that are discriminatory and will require school districts and governments to treat people by merit and not identity.
But plaintiffs in the lawsuit — filed in the U.S. District Court of New Hampshire Thursday by the American Civil Liberties Union of New Hampshire, the National Education Association of New Hampshire, GLBTQ Legal Advocates and Defenders, and attorneys from Drummond Woodsum & MacMahon — say the law is vague and unconstitutional, and would prevent schools from providing an “inclusive education.”
“Given HB 2’s vague and far-reaching scope in the education context, enforcers undoubtedly will arbitrarily decide when HB 2 applies and when it does not,” the lawsuit contends. “To the extent enforcers believe that any of this conduct is exempt from HB 2, this merely underscores the vague, irrational, and incomprehensible parameters of the law.”
The Department of Justice is likely to file a motion responding to this month’s lawsuit in the coming weeks. “We will review the complaint and will respond as appropriate in court,” a spokesman, Michael Garrity, said in a statement Friday.
The lawsuit echoes similar legal action in 2021 against the state’s so-called “divisive concepts law,” which barred public school teachers from advocating certain concepts about racial and gender disparities and oppression. That lawsuit led the U.S. District Court to strike down that law in May 2024, after the court agreed with plaintiffs that it was too vague for teachers to follow. The state has since appealed that decision to the 1st Circuit Court of Appeals, which heard oral arguments in April.
What the new law does
The language in HB 2 seeks to prevent any diversity, equity, and inclusion programs at the state and local governmental level.
Under the new law, no public entity may “implement, promote, or otherwise engage in” any DEI-related programs, trainings, or policies. That includes implicit bias training, DEI assessments, critical race theory, or race-based hiring or promotion.
The law defines DEI as “any program, policy, training, or initiative that classifies individuals based on a characteristic identified under RSA 354-A:1 for the purpose of achieving demographic outcomes, rather than treating individuals equally under the law.” Those characteristics include age, sex, gender identity, race, creed, color, marital status, familial status, physical or mental disability, and national origin.
In addition to school districts, the law applies to municipal government departments, offices, boards, and subdivisions. It also applies to vendors. Local government entities are required to review their existing contracts “for the presence of DEI-related provisions,” a process that will be overseen by the state’s Department of Justice.
The law requires all public school districts to carry out a review of their vendor contracts by Sept. 30 and identify any DEI provisions, and it requires the Department of Education to monitor that review process and submit a report aggregating all school district contracts to the Legislature by Oct. 1.
And the potential consequences for school districts are steep.
“Should a public school fail to abide by any section of this subdivision, either knowingly or unknowingly, the commissioner of the department of education shall immediately halt all sources of public funding to that public school, until such time as the school comes into compliance with all sections of this subdivision,” the law states.
Debate over impact
For supporters of the new law, the anti-DEI prohibition is designed to make schools and state and local governments fairer to all. Rep. Jess Edwards, an Auburn Republican, likened DEI programs to affirmative action programs, and said eliminating them would require school districts to be more objective.
“Aren’t we supposed to be judged by the content of our character and not our skin?” Edwards said at a hearing in April in which the language was first added to the state budget.
But plaintiffs in this month’s lawsuit say the breadth of the DEI ban could affect programs the laws supporters do not intend to target.
For instance, plaintiffs argue, a school district could interpret the law to prevent them from creating sports teams specifically for girl; from making menstrual hygiene products available at no cost to female students; from teaching Holocaust classes that consider how intolerance and bigotry can be combatted; and from attempting to create greater access for Black and Latino students to comply with the Civil Rights Act of 1964.
And the law could entangle special education plans under the Individuals with Disabilities Education Act, plaintiffs allege, because school districts might interpret the ban to prevent them from treating people with a “physical or mental disability” differently.
“These concepts are, at their core, about addressing the individualized needs of specific disabled people — namely, providing individualized services, accommodations, and supports that, by definition, are not provided to others,” the lawsuit states.
Those outcomes are not guaranteed, but they are possible given the vagueness of the new law and the challenge for school districts to interpret how to comply with it, the plaintiffs argued, especially with the risk of severe financial penalties if they are deemed to be noncompliant.
The plaintiffs also note that the law does not affect just public school districts or public colleges and universities. According to letters sent by the state Department of Education and cited in the lawsuit, any private school receiving public education freedom account dollars could be subject to the law, as well as any private college.
Charges of vagueness were at the heart of the 2021 lawsuit against the state “divisive concepts” law. In that case, attorneys for the state argued that the law, and subsequent guidance from the state Department of Justice to teachers, was not overly vague and that the lines of what should be allowed or not allowed in a classroom were clear.
In response to that lawsuit, some Republican state lawmakers proposed amending the “divisive concepts” law this year to clarify that it applies only when teachers “knowingly” teach concepts that are not allowed. Those bills, House Bill 50 and Senate Bill 100, both died after the House and Senate could not find agreement
The 2025 anti-DEI law does not include that limitation: It applies to situations where school districts allow DEI programs to continue “either knowingly or unknowingly.”
Other free speech challenges
The latest federal lawsuit dovetails slightly with another filed by the National Education Association in March, also in the U.S. District Court of New Hampshire. That lawsuit challenges the U.S. Department of Education’s February “Dear Colleague” letter in which federal officials called on schools to eliminate DEI programs or face the denial of federal funding.
That threat has been paused since April, when Judge Landya McCafferty issued a preliminary injunction against any enforcement of the letter.
Plaintiffs have shown irreparable harm,” McCafferty wrote in her preliminary injunction order. “Plaintiffs’ members are presently suffering First Amendment violations as a result of defendants’ coercion of educational institutions into censoring their members’ speech.”
Meanwhile, schools and state officials are waiting for the appeals court in Boston to rule on the state’s appeal of the order striking down the “divisive concepts” law.
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