The Banned-Concepts Law: What It Forbade, and Where It Stands Now

A federal judge struck down New Hampshire’s 2021 “divisive concepts” law as too vague for teachers to obey. Two years on, the appeal is still pending in Boston, and a quieter companion law is shaping Granite State classrooms in the meantime. A plain-language guide.

Here is the short version. In 2021, New Hampshire enacted a law forbidding public-school teachers from advocating a list of ideas about race, sex, and identity. In May 2024, a federal judge threw it out as too vague for teachers to follow. The state appealed, and as of late May 2026 the case still sits with the First Circuit Court of Appeals in Boston, with a decision expected at any time. While everyone waits, the struck-down law remains on the books but unenforceable, and a separate 2024 notification law is quietly doing related work in New Hampshire classrooms right now.

What the Law Actually Said

Strip away the slogans and the law did two concrete things. It told public schools what their teachers could not advocate, and it attached a career-ending penalty to getting it wrong.

The education provision, added to state law as RSA 193:40, barred an educator, school, or district from teaching, instructing, or compelling a student to express belief in a short list of “banned concepts.” A parallel set of provisions in RSA 354-A (the state’s Law Against Discrimination) extended the same prohibitions to public employers and state agencies. Boiled down, the forbidden ideas were: that any group is inherently superior to another; that an individual is inherently racist, sexist, or oppressive by virtue of their identity, whether consciously or not; that anyone should face adverse treatment because of group identity; and that people of one group cannot or should not treat others equally. The list ran across roughly thirteen protected characteristics, from race and sex to gender identity, sexual orientation, religion, disability, and national origin.

Supporters insisted the law was narrower than critics claimed. When Senate Majority Leader Jeb Bradley reworked the original language for the budget, he added a clause stating the provisions were “not to be construed” to bar academic discussion of past or present racism and discrimination. The legislation, Bradley said at the time, was crystal clear, and anyone calling it censorship either had not read it or was misrepresenting it. Whether that saving clause did any real work would become the central question in court.

How It Became Law

The idea did not originate in Concord. It traces to a September 2020 executive order from President Trump targeting “divisive concepts” in federal diversity training, an order President Biden revoked in 2021. New Hampshire House Republicans picked up the framework as House Bill 544, which branded as “divisive” the assertion that the United States or the state was fundamentally racist or sexist. When that stand-alone bill stalled, the language was repackaged (with the term “divisive concepts” stripped out) and folded into the two-year, roughly $13.5 billion state budget, buried deep in a 200-plus-page bill. Championed in the Senate by then-President Chuck Morse and signed by Governor Chris Sununu, it became law as a budget rider in 2021, after failing to pass on its own.

New Hampshire was not alone; its measure was one of more than a dozen similar concept-ban laws enacted across the country in those years. It was, however, the first to be struck down in federal court, according to the ACLU of New Hampshire.

Why the Judge Struck It Down

The challenge was brought by the state’s two largest teachers’ unions, NEA-New Hampshire and AFT-New Hampshire, working with the ACLU of New Hampshire and GLBTQ Legal Advocates & Defenders, alongside a parallel suit from Manchester school district officials. On May 28, 2024, U.S. District Judge Paul Barbadoro granted them summary judgment and struck the law down.

His reasoning was not that the state may never shape curriculum. It was that this law was written so vaguely that teachers could not tell what it forbade. Barbadoro found the provisions to be viewpoint-based restrictions on speech that gave educators no fair warning of what was prohibited and gave officials no real standards to prevent arbitrary enforcement — defects that, he held, violated the Fourteenth Amendment. Teachers, he wrote, were left “gambling with their careers” whenever they tried to work out which lessons were safe. He noted that because the statute set no meaningful guidelines, enforcement effectively turned on the personal views of Education Commissioner Frank Edelblut, whose newspaper op-eds the department had pointed to as guidance. And he stressed that a teacher could be punished without any finding that they had knowingly broken the law.

The human version of the problem came from teachers like Patrick Keefe, a high school English teacher who testified that he had grown wary of teaching Toni Morrison’s “Beloved” and inviting students to connect its themes to the present, for fear a complaint could cost him his license.

Where the Appeal Stands

The Attorney General’s Office filed an appeal to the First Circuit in July 2024, arguing the district court had misapplied the vagueness doctrine and improperly second-guessed the Legislature’s authority to set curriculum. The state’s core legal theory is that a teacher’s classroom speech is part of their official duties, where First Amendment protection is limited, and that the unions had sued prematurely, before the law was ever enforced against anyone. Importantly, while the appeal is pending the district court’s ruling remains in force: the law is not enforceable, and the AG directed state agencies to dismiss any complaints filed under it.

A three-judge panel heard oral argument on April 8, 2025, and the judges sounded skeptical of the state. Judge Seth Aframe described the law as creating “unknown hot zones” that the state would prefer teachers avoid, and the panel pressed the state on how a teacher is supposed to know when they are speaking as an employee and when they are protected. The judges also challenged the unions, asking whether any comparable law had ever been struck down on vagueness grounds before being enforced. One plaintiffs’ lawyer, a Holocaust survivor, argued the law’s ambiguity could leave him unsure whether he was even permitted to teach about the Holocaust — uncertainty that, he said, was precisely the point.

Then it went quiet. More than a year after argument, no decision has issued. As of late May 2026, the case is, in the words of one Concord report, awaiting a ruling “expected at any time.”

The Legislature has not waited patiently. Lawmakers have repeatedly tried to rewrite the law to cure the defects Barbadoro identified — chiefly by adding a requirement that a violation be “knowing” before a teacher can be punished. The most recent attempt, House Bill 1792, branded the CHARLIE Act after the late conservative activist Charlie Kirk, would have revived a narrowed version of the ban. On May 21, 2026, the House refused to concur with the Senate’s amendments on a 222–127 vote, killing it; a similar bill had been tabled the week before. Opponents argued the fix was cosmetic and premature. Rewriting the law now, Rep. Peggy Balboni of Rye said, “makes little sense” while the original is still on appeal, and would only invite more litigation. Supporters counter that students should learn about racism and discrimination without being taught to practice it.

• Sept 2020

  President Trump issues an executive order targeting “divisive concepts” in federal diversity training. President Biden revokes it in 2021.

• 2021

  After HB 544 stalls as a stand-alone bill, the concept-ban language is folded into the state budget (HB 2) and signed into law by Gov. Sununu.

• May 28, 2024

  Judge Paul Barbadoro strikes the law down as unconstitutionally vague under the Fourteenth Amendment — the first such law in the nation to fall.

• July 2024

  The Attorney General’s Office appeals to the First Circuit. The law stays unenforceable while the case proceeds.

• Sept 2024

  The companion law, HB 1312, takes effect — expanding two-week parental notice and opt-out rules to any instruction touching sexual orientation or gender.

• April 2025

  A skeptical First Circuit panel hears oral argument in Boston. A decision does not follow quickly.

• May 2026

  The House kills the CHARLIE Act, the latest bid to revive a narrowed ban. The appeal remains undecided, “expected at any time.”

The Companion: A Quieter Restriction Already in Force

While the banned-concepts law is frozen, a second law is actively shaping what gets taught and when. In 2024, the Legislature passed and Governor Sununu signed House Bill 1312, which took effect on September 17, 2024. It does not ban ideas outright; it attaches a tripwire to them.

The Senate passed HB 1312 on a 13–10 vote, and supporters such as Rep. Lang argued it was modest: a book that merely includes an LGBTQ character would not trigger the requirement, he said: only instruction specifically intended to teach about sexual orientation or gender identity. Critics saw something far broader. The teachers’ unions warned that because gender and sexuality run through history, literature, art, and current events, the notice rule could in practice sweep in Shakespeare’s “Romeo and Juliet,” a unit on the LGBTQ civil-rights movement, or, as NEA-New Hampshire put it, even “a math worksheet that mentions someone’s gender.” Teachers, they argued, would respond the way teachers respond to any vague rule with their license attached: by steering clear.

That is the thread connecting the two laws. One restricts what a teacher may argue; the other burdens whether certain subjects can be raised at all. Critics leveled the same charge at both — that the language is broad enough to make a cautious teacher self-censor. And the trajectory has continued into 2026: this spring, the Legislature advanced further measures requiring districts to answer parents’ written questions about their children within ten business days and to regulate instructional materials, both sent to the governor along party lines.

What’s at Stake for Granite State Classrooms

The practical question for teachers is what they can say without risking their job, and right now the honest answer is: it depends on a ruling that has not come. If the First Circuit reverses Barbadoro, the banned-concepts law snaps back into force, and educators are again left to read vague lines about race and identity with their certification on the table. If the court affirms, the law is dead — but the politics plainly are not, as the CHARLIE Act fight shows, and the next narrowed version is already being drafted in someone’s head.

Either way, HB 1312’s notice regime is operating today, and the 2026 bills point in the same direction. For a New Hampshire teacher, the cumulative effect is less about any single prohibition than about a climate of uncertainty — the quiet calculation, before assigning a novel or opening a discussion, about whether it is worth the risk. Supporters call that parental control and legitimate oversight of public curriculum. Opponents call it a chill. The courts, so far, have agreed the original law was too unclear to be fair. The rest is still being decided — in Boston, in Concord, and in the meantime, classroom by classroom.

Dexter Dow is the founder and editor of Granite State Report, an independent New Hampshire civic journalism outlet based in Northfield. This explainer reflects the status of the litigation as of May 30, 2026.