CONCORD, NH – Gov. Chris Sununu agrees with Attorney General John Formella’s assessment that the Senate-amended version of the so-called “divisive concepts” language in the state budget would not inhibit the teaching of implicit bias in state-funded training or public schools, as critics fear it would, according to the governor’s spokesman.
In his letter declining to meet with members of the governor’s law enforcement accountability commission to discuss their concerns about proposed language, Formella opined that the language in the budget trailer bill would not impact any of the commission’s recommendations, several of which prescribe the increase and improvement of implicit bias training in various corridors of the state’s criminal justice system.
Formella declined to discuss the issue in a meeting with the Law Enforcement Accountability, Community and Transparency (LEACT) Commission because he said it was beyond the scope of the commission’s original mandate.
“I think it is also important for me to note that in my view, the referenced language currently in the budget would not inhibit or have a detrimental impact on the implementation of any of the Commission’s recommendations,” Formella wrote in a June 8 email to the group.
On Monday, Sununu’s spokesman Benjamin Vihstadt said that is the governor’s position as well.
“The Governor agrees with the Attorney General that the Senate’s amended legislation would not prohibit implicit bias training or have a detrimental impact on any of the LEACT Commission’s recommendations,” Vihstadt said. “The Attorney General is responsible for defending the laws of the state, so his explanation on the matter to LEACT members carries the considerable weight of New Hampshire’s Department of Justice.”
Sununu previously said he thought the failed House bill from which the language derives overreached by restricting free speech.
The Senate passed an amended version of the language that Republican leaders purported would fix some of the issues with the original House version, but critics remain skeptical and say it potentially broadens the scope of the prohibitions.
The language would prohibit state-funded training that teaches an “individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”
During last week’s press conference, Sununu expressed support for the language. Until now, Sununu has been silent on the issue since the House bill language was first added to the budget. Last week was the first time Formella weighed in on the debate with his legal opinion. Both essentially sided with Republicans in the Senate who have argued the same point.
Vihstadt says the language would only strengthen the state’s existing anti-discrimination laws.
Senate Democratic Leader Donna Soucy called the language an unconstitutional restriction on free speech.
“To call this direct violation of our first amendment rights an ‘anti-discrimination’ effort is an outrageous façade,” Soucy said in a statement following the Senate passage on June 3. “The only effect this legislation will have on discrimination in our state is it will prevent discussions around it.”
“It is unfortunate that some critics are trying to discredit this compromise legislation by spreading misinformation that is simply not true,” Vihstadt said.
Formella’s email to the commission also hints at a likely legal battle that could ensue should the language become law, and the state’s role in defending it.
“We at the Department of Justice must refrain from taking a position/commenting in detail on this language while the legislation is pending, as we have provided legal advice to the Senate with regard to the language and we may be called upon to enforce and defend the language if it is enacted,” Formella said in his response.
The LEACT commission was created by the governor last year to convene and recommend reforms that would improve the relationship between police and minority communities, in the wake of George Floyd’s murder by a Minneapolis Police officer.
James McKim, the president of the Manchester NAACP and a member of the commission, said several of their recommendations included expanded implicit bias training for police, judges, state prosecutors in the Attorney General’s office and public defenders.
It’s McKim’s view, and the view of other LEACT members that the proposed language would either outlaw implicit bias training or have a chilling effect on such trainings for fear of litigation.
“We were really hoping to just have a conversation about it,” McKim said.
The Governor’s Advisory Council on Diversity and Inclusion expressed similar concerns in a letter to the governor’s office earlier this month, which included Safety Commissioner Robert Quinn. That group did meet with the Attorney General’s Office to discuss the issue.
Joseph Lascaze of the American Civil Liberties Union of New Hampshire sent a formal letter to the Attorney General’s Office on June 4, requesting the sit-down to discuss their concerns. Members Ken Norton of NAMI NH, Ronelle Tshiella of Black Lives Matter Manchester and McKim also wrote messages expressing their interest in a meeting, McKim said.
McKim said it’s true that the original mandate of the commission, as outlined by executive order that created it, has a more limited scope. But he said the final recommendation endorsed by the governor was to continue the group and provide the governor with guidance on the execution of the recommendations. McKim says that’s exactly what the commission was hoping to do by discussing their concerns.
Divergent interpretations of the legal language hinges on whether or not it would indeed outlaw any discussion around the existence of implicit bias, which trainings on the issue describe as a universal condition. In other words, it holds that everyone has an unconscious bias about race or religion or gender, and so on. The first step in overcoming those biases is to do some introspection and weed out the preconceptions.
At best, critics say the language is too vague and could be applied broadly. What may or may not be prohibited speech also gets harder to untangle, critics say, when training includes discussions around the historic oppression and privilege of specific racial groups in the United States, and elements of Critical Race Theory, the underpinning body of academic study that seeks to explain the root causes of systemic racism, which proponents say insidiously infects legal and economic systems to the detriment of minority groups.
1776 Action, a national advocacy group that supports the new language and has funded statewide television and radio ads on the issue, says the language is designed to specifically target Critical Race Theory, which they say is an inherently racist body of literature that divides people and teaches that the United States is a hateful country.
McKim said this is a complete misunderstanding of Critical Race Theory. He said it is similar to Feminist Theory, as it’s simply a study into dynamics that create and reinforce disparities, in this case based on race rather than gender.
Other critics of the bill, such as the Business and Industry Association, a dozen leading environmental groups, hundreds of independent businesses, the state Child Advocate and several public school districts say the conversations around race are “uncomfortable” but necessary to eliminate disparities in public health, education and criminal justice.
