Nearly ‘unintelligible’ anti-DEI law in New Hampshire blocked (and knocked) by federal judge
McCafferty noted that the law empowers the state education commissioner to strip all public funding from educational institutions that promote diversity, equity, and inclusion, despite those concepts not being clearly defined.
The law’s definition of “DEI” is so sweeping that it prohibits certain teaching and administrative practices that have long been accepted as appropriate, including some that are legally required, she wrote.
“It is hard to imagine how schools could continue to operate at even a basic level if the laws’ prohibitions were enforced to their full extent,” she added.
As if banning one ill-defined acronym wasn’t enough, lawmakers added a layer of complication by banning participation in activities deemed “DEI-related” — a broad phrasing that McCafferty said “fails to give adequate notice of what is prohibited, and impermissibly delegates lawmaking to unelected officials.”
In fact, McCafferty said arbitrary enforcement began promptly after the law took effect in July, when the outgoing education commissioner sought to enforce the new provisions against private colleges and universities receiving public funds, but not against private K-12 schools receiving taxpayer money via the “education freedom account” program that he championed.
The risk of arbitrary enforcement doesn’t stop there, McCafferty wrote.
While the state claims this law doesn’t prohibit schools from providing targeted support to students with disabilities, its “plain text” indicates otherwise, she wrote. Although officials are unlikely to crack down on programming for students with disabilities, they seem more open to taking action against schools with policies protecting “politically unpopular minorities,” such as transgender students, she added.
A spokesperson for the New Hampshire Department of Justice did not immediately respond to a request for comment.
McCafferty, who was appointed by President Barack Obama, had already issued a short-term temporary restraining order in this case last month, prompting some Republican state lawmakers to accuse her of “partisan judicial overreach.” The preliminary injunction she issued on Thursday will remain in place longer-term as the litigation moves forward.
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Steven Porter can be reached at [email protected]. Follow him @reporterporter.
