Since 1990, New Hampshire public schools have been required to give students with disabilities personalized plans. Known as individualized education programs, the plans are the key mechanism by which parents ensure that their child has services and accommodations for their disability.
But a group of school districts argue a new “anti-DEI” state law signed into the budget this year could disrupt those plans. And they’re seeking to convince a federal court to strike the law down for being unconstitutionally vague.
The state’s attorney general’s office counters that the law will not affect special education services, and is instead targeted at programs that unfairly advantage certain demographics over others. And lawyers for the state said the law is clear. “It is our position that this is not a vague statute,” said Senior Assistant Attorney General Brandon Chase.
But during oral arguments between plaintiffs and the state Wednesday, Judge Landya McCafferty of the U.S. District Court of New Hampshire appeared sympathetic to plaintiffs’ contentions that the new law is difficult to understand and comply with and could muzzle free speech.
U.S. District Court in Concord, New Hampshire.
The law, passed as part of the House Bill 2 budget trailer bill, states that “no school district shall implement, promote, or otherwise engage in any DEI-related initiatives, programs, training, or policies.” It also prohibits districts from entering into contracts that contain such policies. DEI stands for diversity, equity, and inclusion.
For districts, the potential penalties are steep: If found by the New Hampshire Department of Education to have violated the law, the commissioner of that department must “immediately halt all sources of public funding to that public school,” until the school has come back into compliance. That punishment applies whether the district did so “knowingly or unknowingly.”
“Even if (school districts) do not know, the commissioner shall immediately halt all sources of public funding,” McCafferty said during the hearing, adding that the risks for districts are high.
Proponents of the law, which was added to the budget in April and did not receive a public hearing, say the law is meant to ensure that all students are treated fairly. It simply states that no hiring program, school policy, or training may give anyone a leg up “for the purpose of achieving demographic outcomes, rather than treating individuals equally under the law,” supporters say.
The budget bill, signed by Gov. Kelly Ayotte in June, also extended the anti-DEI ban to all public entities, including local government and state government agencies.
But lawyers for plaintiffs said the law would unconstitutionally interfere with many programs offered by public school districts. And they noted that the law provides no appeal options for a district whose funding is denied by the department; districts must comply or lose the money.
“This law isn’t just designed to address quotas; it’s designed to suppress ideas,” said Gilles Bissonnette, the ACLU of New Hampshire legal director, addressing the court Wednesday.
The lawsuit echoes two others brought before the New Hampshire federal district court in recent years, both of which had outcomes that favored the plaintiffs.
In 2024, Judge Paul Barbadoro struck down state legislation known as the “divisive concepts” law, which prohibited teachers and government employees from promoting a certain concept about racism, sexism, and oppression. In that case, Barbadoro found the law was unconstitutionally vague.
And in April, McCafferty granted an injunction against a “Dear Colleague” letter sent by the Trump administration to state education departments instructing public schools to drop DEI programs and positions or face a loss in federal funding. That order temporarily stopped the U.S. Department of Education from acting on the promises in the letter.
Lawyers for the plaintiffs referred to those cases often Wednesday.
‘Judge, jury and executioner’
The lawsuit was partly prompted by a series of letters sent out by the New Hampshire Department of Education informing school districts about the new requirements. Those letters drew attention to a Sept. 30 deadline – the date laid out in the new law by which school districts must certify if they are in compliance with the law and report any contracts or programs they have that include DEI-related programs.
Bissonnette argued the law is “impossible to follow” and “easy to violate.” Districts “do not know how to comply, and if they guess wrong, funding is on the line,” he said.
The law is especially easy to violate because of the lack of a requirement that districts “knowingly” violated the law in order to be punished, Bissonnette added.
And he said that because of the lack of an appeal process, whether or not districts face penalties depends on the determinations of the state.
“The New Hampshire Department of Education is the judge, jury and the executioner here,” Bissonnette said.
The law extends beyond schools, plaintiffs argue. Bissonnette named a few potential programs that could be at risk, such as the “30×30 Initiative” — a pledge taken by the Manchester police department and others to try to recruit 30% female officers by 2030. He pointed to the policy of free state park entry for New Hampshire residents over 65, of tuition waivers for college students over 65, and about lax fitness standards for older police officers. Those programs arguably have the purpose of achieving demographic outcomes, Bissonnette said.
Questions of intent
Attorneys for the state said that plaintiffs should not receive an injunction because they had not shown they are at risk of suffering immediate harm.
They also argued the law is not unclear, and that its meaning could be understood by the average person. The intent of the law is to prevent some groups to be disadvantaged or placed at an advantage over others, said Assistant Attorney General Sam Gonyea.
NH argues law does not affect students with disabilities
Speaking to the concerns about accommodations for students with disabilities, Gonyea argued that the new law does not prevent those accommodations and did not pre-empt the federal Individuals with Disabilities Education Act or the Americans with Disabilities Act. He said individual disability arrangements are specific accommodations to specific students, and are not meant to provide demographic outcomes.
Gonyea also said the new law would not prevent school districts from establishing girls sports teams.
But Gonyea did agree that some of the examples named by Bissonnette, such as the program to recruit more female officers, could be interpreted to be prohibited by the law.
The difference between those programs that would be prohibited and those that would not be, Gonyea argued, lies in whether they provide equality or unfair advantage. The establishment of the girls’ sports team, he said, provides equality with the boys’ sports teams, and allows everyone access to a sports team. The female recruitment initiative, meanwhile, affected the hiring chances of people who are not female, and would thus violate the law.
Gonyea said a government entity could not create an all-Jewish basketball team because that would not be an equal playing field. “That’s discrimination. And New Hampshire wants to get rid of it.”
Asked by McCafferty whether a school that had recently experienced an anti-Semitic hate crime committed by a student — like a swastika drawn on a whiteboard — could hold Holocaust awareness classes to help protect Jewish students, Gonyea argued that it could not, under the law, if the purpose was to protect Jewish students. If the purpose was to educate all students about the Holocaust in response to the incident, the school could likely proceed, he said.
“A lesson like that should be taught to everybody, for the same purpose,” he said.
Zoe Brennan-Krohn, the director of the ACLU’s disability rights program, said before the court that Gonyea’s interpretation of the ADA and IDEA is wrong: “The idea of differential treatment is foundational to the structure of these laws,” she said.
New Hampshire’s anti-DEI law, which prohibits that differential treatment is fundamentally in opposition to those laws, she said. “They simply can’t coexist,” she said.
Bissonnette, meanwhile, said the number of times when lawyers for the state had opined that one program would be subject to the law and another would not was an indication of the subjectiveness of the law.
“This is becoming a bit of a line reading exercise,” he said.
Gonyea countered that the fact there are easy cases of interpretation and harder cases does not make the law vague. “We discern the purpose of conduct all the time in law,” he said.
Judge questions whether anti-DEI law is constitutional
Throughout the oral arguments, McCafferty appeared skeptical that the state law could pass constitutional muster. She dismissed arguments by the state that the plaintiffs lacked standing. And she noted in multiple comments that the new law does not allow for school districts to contest a funding decision made by the department against them — unlike the “divisive concepts” law, in which teachers could appeal.
“Where is the appeal process?” she asked the state attorneys.
She also appeared to side with the plaintiffs’ arguments about the conflicts between the federal disability laws and the state law. “I’m just not understanding how you’re interpreting this language with respect to special education,” she said.
It is not clear when McCafferty might make a ruling.
But even if she issues an injunction, McCafferty could be constrained by the June U.S. Supreme Court ruling in Trump v. CASA, Inc. That decision limits the ability of district court judges to issue nationwide injunctions and requires most injunctions to affect only the people who have filed the lawsuit.
McCafferty noted to the plaintiffs that they could come back with more plaintiffs should any injunction she issues be too narrow.
And she asked the state whether it would stop enforcing the law if she issued an injunction specifically to the plaintiffs.
Chase said the state could not guarantee it would.
This story first appeared in New Hampshire Bulletin.
This article originally appeared on Portsmouth Herald: Federal judge appears skeptical of New Hampshire anti-DEI law