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ACLU-NH argues that decision on California case centered on first amendment rights applies to HB 544

By Scott Merrill

Legislation under debate in New Hampshire seeking to prevent discussion about systemic racism and sexism could be dead on arrival.

HB 544, better known as the “divisive concepts” bill, has sparked a strong reaction by its opponents and drawn comparisons to former President Trump’s Executive order last Oct. banning federal entities and contractors from providing employees with training on “divisive concepts” and “harmful ideologies” related to race and gender.

Attorney Anthony Sculimbrene said HB 544 is written so unclearly that it would likely never be voted into law.

“HB 544 is what is called void for vagueness,” he said. “That’s a core concept in our law which says that statutes must be clear on their face and that’s also tied into the first amendment as well as due process. The very first problem with this statute is that it is simply well below the bar for clarity that would be required to have it pass into law.”

The rules regarding divisive concepts in HB 544 apply to any “contractor” in New Hampshire, including: “all persons, individuals, corporations, or businesses of any kind that in any manner have entered into a contract, or perform a subcontract pursuant to a contract, with the state of New Hampshire.”

Divisive concepts, according to language in the first few sections of bill, include the idea that:

“(a) One race or sex is inherently superior to another race or sex; (b) The state of New Hampshire or the United States is fundamentally racist or sexist; (c) An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously; which would prevent “divisive concepts” from being discussed.”

Arguing various parts of this bill in court, Sculimbrene said, would be next to impossible.

“If I represented someone who was caught violating this statute it’s not as though there’s one or two concepts you can point to and say, ‘this doesn’t work,’” he said. “The bill would impose upon the educational establishment and other organizations a very broad determination about this notion of divisive concept with no way to determine what it means. All of this requires value judgements that are simply incompatible with the concept of statutes providing clear notice and statutes providing due process.”

Gilles Bissonnette, Legal Director for ACLU-NH, provided testimony on HB 544 to the House Executive Departments and Administration Committee on Feb. 18. He said the bill is akin to the executive order previously issued by former President Trump and that like that order HB 544 would violate first amendment rights.

“HB 544 would prohibit the state and state contractors from undertaking a variety of trainings meant to promote diversity, equity, and inclusion, and which would violate the First Amendment,” Bissonnette said in a statement. “Halting all diversity training could set back progress in addressing these systemic issues, including in the workplace. Talking about racism and sexism is not harmful to employees. Many employers host trainings on these issues precisely because they contribute to a workplace that is more equitable and inclusive.”

In his testimony, Bissonnette cited Santa Cruz Lesbian and Gay Community Center v. Trump, a case in California that lead to a preliminary nationwide injunction imposed on former President Trump’s executive order.

The issue the Court addressed was whether Trump’s “divisive concepts” executive order prevented the plaintiff’s freedom to deliver diversity training using funds unrelated to the federal contract.

“In Santa Cruz, there was a First Amendment violation because companies that have contracted with the federal government would no longer have that freedom,” Bissonnette said. “The same is true under HB 544.”

That case also addresses the point about a lack of clarity that Sculimbrene described regarding HB 544.

“The executive order was so vague that it was impossible for the organizations to determine what conduct was prohibited,” according to a LexisNexis summary of the case.

At face value there are simply too many questions the bill raises, Sculimbrene said.

“Who makes the determination about what [fundamentally] means? Who makes the determination about what racist or sexist means? And who are we talking about in the state of New Hampshire? Are we talking about all the people? Are we talking about the government? None of this is clear.”

Asked March 9 on NHPR whether he would veto the bill, Governor Sununu said, “probably, yeah. I don’t support it.”

“Look, that bill, as I’ve read it to date, really limits free speech. We may not like what is said in a public setting or a school or whatever it is, but that’s the beauty of local control…you don’t control that by having a big government law that says you can’t say certain things. If that’s not changed, I’d very likely veto it,” Sununu said, responding to a question by The Exchange host, Laura Knoy.

One of the immediate effects the bill would have, Bissonnette said, is that it would bar the implementation of recommendations made by the Governor’s Commission on Law Enforcement Accountability, Community, and Transparency.

This would include recommendations that Governor Sununu has endorsed that include annual in-service trainings on implicit bias, cultural responsiveness, de-esculation and ethics trainings for police.

Sculimbrene summed the proposed bill up by saying that it “provides great talking points for political talk radio,” but he doesn’t envision it ever having the “sufficiently precise language needed to withstand a court challenge.”

Reps. Glenn Cordelli and Keith Amman, both republicans who sponsored the bill, have not responded to requests for comments.