Abstract

[Excerpt] "

Much critical commentary on the so-called “divisive concepts” provisions in this year’s budget legislation – the label comes from language in an earlier version of the bill – has focused on their content- and viewpoint-based restraints on speech. These speech restrictions prohibit state public employers, including public K-12 school teachers, from (among other things) instructing that persons are “inherently superior or inferior to [others]” “inherently racist or sexist,” “should be discriminated against,” or “should not attempt to treat others equally” because of their “age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.”

Criticism of these speech restrictions is deserved. The restrictions are, at the very least, antithetical to our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.” (New York Times v. Sullivan, U.S. Supreme Court, 1964). To take one of many possible examples, the question of whether affirmative action should be constitutional in the racial context might well return to the Supreme Court next term in Students for Fair Admissions v. Harvard College, a case that is pending on its docket. The case involves whether Harvard is unlawfully discriminating against Asian American applicants in how it conducts its admissions processes. What a wonderful contemporary issue to discuss and debate in a high school civics class, right?"

Department

Law

Publication Date

8-10-2021

Journal Title

New Hampshire Bulletin

Document Type

Commentary

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