I like the idea of “HB544 – relative to the propagation of divisive concepts” but feel the concept cries out for legal attention. This bill is not well-drafted, is overly wordy, has conflicting provisions, even asserts authority over the “unconscious.” The terms “diversity” and “inclusion” are used but not defined. There are no legislative findings except one.
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And that is in an inappropriate section: Section V(a) of 10-C:2 Unlawful Propagation of Divisive Concepts. Subsection (1) of this section badly needs a subject-verb-object redo.
Penalties for contractors are stated but there are none for teachers or schools – union agreements cannot thwart state law – or students. There are also none for state agency employees. There are no guidelines for exemptions or even authority for the Department of Administrative Services to enact exemptions.
Mounds of paperwork are created by burdening the Department with reviewing “all training programs for state agency employees relating to diversity or inclusion.” Better for that department to issue generic notices for contractors and generic training guidelines for agencies, instituting a kind of state big brotherism? No.
The phrase, “relating to” is dangerously broad. Even more department paperwork is created by mandating annual agency compliance reports, although a report saying “we’re good” can be enough given no listed requirements for the report.
There are cross-purposes also: the Department investigates complaints about contractor training programs but it is the agency letting the contract that has the power to terminate the contract. Must the subject agency, which would likely receive the complaints, advise the Department of complaints it receives? Then who does what?
Speaking of complaints, are they to be administrative or judicial? Is original jurisdiction with the agency or with the courts as a matter of, say, First Amendment or other legal rights? Which agency(ies) hears contractor employee, student or state agency employee complaints? Who decides whether the agency or contractor’s penalties are illegal?
Finally, who polices the objectivity of academic discussions? Can a student simply say “I’m offended”? And on this, the definition of student can cover young children in elementary schools. What is the penalty for a student? Is the teacher held responsible for not protecting the student asserting s/he is offended? Similar problems face state employees and contractor employees: what of those feigning offense by something heard in the employee lunchroom?
So – good idea but poorly thought out. Perhaps better suited as a simple amendment to Human Rights Commission legislation, RSA 354-A.
