What does it mean to be “inherently superior or inferior” or “inherently racist, sexist, or oppressive, whether consciously or unconsciously?” I’ve been asking myself that question since Gov. Sununu signed into law the budget that included an amendment to RSA 354-A, The Law Against Discrimination.

On November 11, the Department of Education (DEA) launched a new webpage that provided a link to a Public Education Intake Questionnaire that could be sent to the NH Commission for Human Rights, which would investigate a complaint of discrimination alleged against a public school. Apparently, the DEA wants to make it as easy as possible for people to file a complaint. This is unprecedented.

On the DEA website, there is a link to an NH Department of Justice (DOJ) document called Frequently Asked Questions (FAQ). With regard to what schools are prohibited from teaching students, it summarizes the answer, stating: “In short, do not teach that a person or a group is inherently oppressive, superior, inferior, racist or sexist. Teach and treat all equally and without discrimination.”

The FAQ goes on to state that the law does not prohibit teachers from teaching “historical subjects including, but not limited to: slavery, treatment of the Native American population, Jim Crow laws, segregation, treatment of women, treatment of LGBTQ+ people, treatment of people with disabilities, treatment of people based on their religion, or the Civil Rights movement. Nor does anything prohibit discussion related to current events including, but not limited to: the Black Lives Matter movement, efforts to promote equality and inclusion, or other contemporary events that impact certain identified groups.”

Schools are allowed to teach students historical concepts related to discrimination and if the allegation merely states that someone is “uncomfortable” about what is being taught, the DOJ concludes that the school has not violated the law.

That reveals what the law says the public schools can do, but I’m still confused as to what the public schools cannot do under this new law. I continue to have trouble figuring out what it means to be “inherently superior, inferior, racist or sexist.”

In order to pass constitutional scrutiny, a law must clearly and unambiguously define what it is trying to mandate. It is unenforceable if it is too vague for the average citizen to understand. I consider myself pretty average and I don’t understand it at all.

Let’s try to break it down.

According to the DOJ, “inherent” means characteristics that are natural, biological, or innate, as opposed to characteristics that are merely apparent, accidental, or based on external factors.” In other words, it is a characteristic we as humans are born with.

I was born with blue eyes and red hair. Those characteristics don’t change unless I purposefully alter them with contacts or hair dye. A scientist could probably determine what I was born with through a DNA test. I could write green eyes on my driver’s license application, but if someone were to dig deeper they’d know I was lying.

According to Merriam-Webster, racism is “a belief that race is a fundamental determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race.” Racism is also defined as prejudice, which includes “unfair feeling of dislike for person or group, especially when it is not reasonable or logical.”

Racism is not an inherent, natural, biological, or innate characteristic. It is a learned construct or belief. One cannot determine if one is racist or prejudiced by taking a sample of one’s DNA. We may be born white or Black (which is biological), but we are not born racist or prejudiced.

So, I do not understand how it is even possible to teach, train or advocate that a person is inherently racist or sexist (which is also a learned prejudice).

When the statute goes on to declare that a person born into one of the identified groups is “inherently oppressive, consciously or unconsciously,” it creates an oxymoronic impossibility. Just because I was born with blue eyes, this statute suggests I am prone to oppressing brown-eyed people unconsciously. How is that even possible? More incredibly, just because I was born white, this statute allows someone to complain that I’m probably unconsciously inherently oppressing someone or a group that is not white.

The statute, by including “unconsciously,” eliminates any form of mens rea that would make this an actionable offense. Mens rea is just a fancy legal term for a mental knowledge that one is doing something wrong. I doubt seriously that the legislature intended to hold people accountable for unconscious acts. I’m pretty certain the constitutional requirement for some sort of due process would have something to say about that. That is probably why the DOJ rendered the opinion that mere “discomfort” will not qualify for an actionable offense.

I wholly concur with the DEA and the DOJ that schools should teach and treat all students equally and without discrimination. But that is already the law of the state found in RSA 354-A:27, which states: “No person shall be excluded from participation in, denied the benefits of, or be subjected to discrimination in public schools because of their age, sex, gender identity, sexual orientation, race, color, marital status, familial status, disability, religion or national origin, all as defined in this chapter.”

The addition of sections 29-34 to RSA 354-A, which is what Sununu signed into law in June 2021, is superfluous, incomprehensible and completely unnecessary. It has further divided this state and encouraged fringe groups to put up bounties for anyone who succeeds in prosecuting a teacher under these new laws.

It is a sad commentary on our New Hampshire politics when, in the midst of a global pandemic, we are creating chaos in the classroom and confusing the existing teaching staff and administration in our public schools. We do not need to further disincentive a teacher’s love of educating the young minds of today by creating ridiculous laws that make no sense whatsoever.

I implore the legislature to repeal this unconstitutional law and firmly reject the newly introduced HB 1255, which would prohibit teachers from “teaching that the United States was founded on racism” or advocating “communism, socialism or Marxism.” This assault on education must end.

(Susannah Colt lives in Whitefield and can be reached at susannahbcolt@gmail.com.)

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