Months after a federal court held that a 2021 state law regulating how teachers address race, gender, and other topics , New Hampshire鈥檚 Attorney General鈥檚 Office has filed an appeal.

In a filing to the First Circuit Court of Appeals in Boston announced Wednesday, the office argued that the U.S. District Court of New Hampshire was wrong to rule that the state law is unconstitutionally vague.

鈥淭he court applied the vagueness doctrine in a way that improperly second guesses the legitimate policy choices made by the State Legislature in setting curriculum within New Hampshire鈥檚 public schools,鈥� read a press release by the Department of Justice Wednesday.

The case centers around a law, known to opponents as the 鈥渄ivisive concepts鈥� or 鈥渂anned concepts鈥� law, that restricts teachers and other public employees from certain teaching topics and lays out professional consequences 鈥� including lawsuits and the potential loss of their teaching credentials 鈥� if they are found to have violated the law.

Under the law, teachers and government employees are not allowed to advocate that people of one race, gender, or other characteristic are inherently superior to or advantaged over others; that people of one characteristic are inherently oppressive toward others; that an individual should be discriminated against or receive adverse treatment for any characteristic; and that people 鈥渃annot and should not attempt to treat others without regard to鈥� their characteristics. The law, labeled the Right to Freedom from Discrimination in Public Workplaces and Education, allows parents to file lawsuits against school districts if they believe teachers are violating the law, and allows them to file complaints with the New Hampshire Commission for Human Rights.

If a teacher is found by a court or the commission to have violated the law, the State Board of Education can take disciplinary action and potentially rescind their teachers license.

So far since the law鈥檚 passage as part of the 2021 budget, only one complaint has been brought forward, according to the Attorney General鈥檚 Office. But teachers unions and the American Civil Liberties Union say that because the prohibitions in the law are not clear, and because the professional consequences are so severe, the law has had a chilling effect on teachers who feel they cannot have nuanced discussions on race or gender.

After two teachers鈥� unions, the American Federation of Teachers of New Hampshire and National Education Association of New Hampshire, sued the state in conjunction with the ACLU of New Hampshire and LGBTQ Legal Advocates & Defenders, Judge Paul Barbadoro ruled in May that the law violated teachers鈥� 14th Amendment rights because it was unconstitutionally vague. That vagueness applied to both the way in which teachers might interpret the law and the way in which state officials might choose to punish teachers under the law, he ruled.

鈥溾�� Because the Amendments fail to establish 鈥榤inimal guidelines to govern [their] enforcement,鈥� officials are free to 鈥榩ursue their personal predilections鈥� when applying the law,鈥� Barbadoro wrote.

Barbadoro鈥檚 ruling struck down the law; the state is now seeking to restore it through the appeal.

鈥淭oday鈥檚 decision to appeal this misguided ruling underscores our commitment to upholding the right of duly elected legislators to enact carefully considered policy and clarity in our state laws,鈥� Attorney General John Formella said in a statement Wednesday. 鈥溾�� This case is not just about legal technicalities; it鈥檚 about safeguarding the integrity of our legislative process and ensuring clarity and stability for our educators, students, and communities across New Hampshire.鈥�

Oral arguments in the appeal in Boston are 鈥渆xpected to occur in the coming months,鈥� the press release continued.

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com. Follow New Hampshire Bulletin on and .

This story was updated on May 28 at 5 p.m.

Patrick Keefe says he just wanted to teach Toni Morrison鈥檚 鈥淏eloved.鈥�

The high school English teacher has long included the Pulitzer Prize-winning novel about slavery in his curriculum at Litchfield鈥檚 Campbell High School. And in the past, he had questioned students about whether Morrison鈥檚 themes about the legacy of slavery applied to the present.

But after a state law passed in 2021 that regulated how teachers may talk about race and other concepts to students, Keefe became more cautious, he testified in a deposition last year. Any student-led discussion about structural racism might lead to a complaint under the new law, and might cause Keefe to lose his teaching license, he feared.

On Tuesday, a federal judge cited Keefe and other teachers鈥� examples in an order striking down the law, siding with teachers unions and the American Civil Liberties Union of New Hampshire and ruling that the law is unconstitutionally vague.

In , Judge Paul Barbadoro held that the law, known by opponents as the 鈥渄ivisive concepts鈥� or 鈥渂anned concepts鈥� law, violated teachers鈥� 14th Amendment rights because it is too vague for them to follow.

鈥淭he Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement,鈥� Barbadoro wrote, referring to the statutory changes passed by the law.

The law prohibits K-12 public school staff from any instruction that advocates for four concepts: that a person of any race, gender, sexual orientation, or other characteristic is inherently 鈥渟uperior鈥� to another; that any individual is inherently racist, sexist, or oppressive against another for any characteristic; that an individual should be discriminated against or receive adverse treatment for any characteristic; and that people of one characteristic 鈥渃annot and should not attempt to treat others without regard to鈥� one of their characteristics.

The characteristics covered by the law are a person鈥檚 鈥渁ge, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.鈥�

The law, which was in part modeled after an executive order by President Donald Trump that applied to federal employees and was repealed by President Joe Biden, was presented by Republican lawmakers as an anti-discrimination statute meant to ensure that all students were treated equally. It came as Republican lawmakers raised concerns about diversity, equity, and inclusion efforts implemented in public schools, and argued that teachers were espousing 鈥渃ritical race theory鈥� in classrooms.

The law allowed parents to bring complaints to the state鈥檚 Commission for Human Rights against teachers and school staff who they believed violated the new anti-discrimination statute. And it gave the State Board of Education the power to revoke educators鈥� teaching licenses if they were found by the commission to be in violation.

But teachers unions and others raised concerns that the prohibited concepts were too unclear to follow and would result in educators self-censoring instruction around certain topics such as race or gender for fear of losing their teaching credentials.

In his order Tuesday, Barbadoro sided with the state鈥檚 two teachers unions 鈥� the National Education Association of New Hampshire (NEA) and the American Federation of Teachers of New Hampshire (AFT) 鈥� who had argued that the law violated their 14th Amendment rights because it did not provide clear guidance of what teachers should or shouldn鈥檛 teach.

Barbadoro鈥檚 ruling grants 鈥渄eclaratory relief鈥� to plaintiffs, meaning he is ruling that the law is unconstitutional, but it does not grant 鈥渋njunctive relief鈥� 鈥� a stricter ruling that would have stopped the state from carrying out the law. In his order, Barbadoro wrote that he didn鈥檛 believe he needed the latter relief because he believed the state would respect the ruling and stop enforcing the law.

The ruling was a setback for the state, which had argued that the Attorney General鈥檚 Office had given teachers sufficient guidance in a 鈥淔requently Asked Questions鈥� released in 2021 that outlined scenarios in which teachers would violate or not violate the law.

There are no known cases of New Hampshire teachers who have been found by the Commission for Human Rights to have violated the law.

But Barbadoro said there were a number of scenarios that the FAQs did not address. One such unanswered question centered on Keefe鈥檚 attempts to teach 鈥淏eloved.鈥�&苍产蝉辫;

According to his deposition, Keefe had asked for clarity from his school鈥檚 administration but 鈥渨as told there was none available other than the Attorney General鈥檚 Frequently Asked Questions,鈥� Barbadoro noted.

Barbadoro also noted the example of Jennifer Given, a former high school social studies teacher at the Hollis Brookline High School who 鈥渇elt the need to significantly modify her teaching methods 鈥榦ut of fear that [she] would be accused of鈥� violating the Amendments, regardless of whether she was actually doing so.鈥�

And he argued that the uncertainty applied to extracurricular activities as well, citing the testimony of Ryan Richman, a high school history teacher at Timberlane Regional High School. Richman said as a faculty adviser for the school鈥檚 Model United Nations team, he felt the law hampered his ability to help students for their competition in fear of saying something that might be seen as a violation.

Barbadoro used the examples to bolster his larger conclusion.

鈥淭he Amendments are vague not because they subject teachers to severe professional sanctions, but because they fail to provide teachers with sufficient notice of what is prohibited and raise the specter of arbitrary and discretionary enforcement,鈥� he ruled.

He also said that the vagueness would allow state officials to apply their own arbitrary interpretations to enforcement.

鈥溾�� Because the Amendments fail to establish 鈥榤inimal guidelines to govern [their] enforcement,鈥� officials are free to 鈥榩ursue their personal predilections鈥� when applying the law,鈥� Barbadoro wrote.

The decision was hailed by the plaintiffs; Gilles Bissonnette, legal director of the ACLU of New Hampshire, called it 鈥渁 victory for academic freedom and an inclusive education for all New Hampshire students.鈥�

鈥淣ew Hampshire鈥檚 鈥榖anned concepts鈥� law stifled New Hampshire teachers鈥� efforts to provide a true and honest education,鈥� agreed NEA-NH President Megan Tuttle in a statement. 鈥淪tudents, families, and educators should rejoice over this court ruling which restores the teaching of truth and the right to learn for all Granite State students.鈥�

And it was cheered on by Democrats, including the two lead Democratic candidates for governor. Former Manchester Mayor Joyce Craig praised the plaintiffs who 鈥渇ought this unconstitutional law.鈥� In her own statement, Executive Councilor Cinde Warmington said, 鈥淭eachers should be free to teach 鈥� the truth 鈥� and students should be free to learn.鈥�

Republicans said they would redouble efforts to pass the bill. In a statement, former state Senate President Chuck Morse, a Republican candidate for governor who had helped push for the law in the Senate, said he was 鈥渄eeply disappointed鈥� in the decision but vowed to press on.

鈥淎s Governor, I will work tirelessly with lawmakers, educators, and community leaders to draft and pass a stronger bill that addresses the court鈥檚 concerns while keeping our fundamental goal intact: to prevent the dissemination of any materials that promote racial superiority or inferiority,鈥� Morse said.

In a post on X, State Rep. Keith Ammon, a New Boston Republican, wrote: 鈥淛udge Barbadoro just put stopping Critical Race Theory back on the ballot in November.鈥�

is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com. Follow New Hampshire Bulletin on and .