SB 263, which is supposedly “relative to anti-discrimination protection for students in public schools,” has passed the New Hampshire House (roll call here) upon the recommendation of the House Education Committee. Does opposing SB 263 mean Cornerstone favors discrimination? Never. What we see in SB 263 is a nice title on a bill that raises more questions than it answers.
The bill would allow any public school student claiming to be aggrieved by a discriminatory practice to sue the student’s school or school district.
- Since New Hampshire students are already protected under anti-discrimination law (as is each person in New Hampshire), why is this bill needed?
- What constitutes “discrimination” under the bill? If a six-year-old girl says she’s a boy, and if a school staffer refers to the child with a pronoun consistent with the child’s biological sex, is that grounds for a complaint under SB 263? Is bullying a form of discrimination, open to remedy in the courts and the Human Rights Commission?
- Speaking of bullying, SB 263 only applies to actions by a school or school district. What kind of anti-discrimination remedy is available to a student who is bullied by another student? If bullying is a form of discrimination, then handling it strictly under school-discipline policies would be inappropriate.
- The bill would allow an aggrieved student to sue a school or school district in court, or alternatively, to bring a complaint before the Human Rights Commission. Whether or not a complaint is made in good faith, a school or school district would have to pay the costs of either litigation or Commission action. Why doesn’t the bill have a fiscal note, since it obviously will create costs to be borne by taxpayers?
- What happens to school employees, school board members, and school district administrators when a discrimination complaint is deemed well-founded?
- How would SB 263 affect gender equity in student sports? If a male chooses to identify as a female and then to try out as a female on a school sports team, how would that be handled? Currently, NHIAA policy leaves such decisions to local districts. How can SB 263 be reconciled with Title IX, in terms of women’s sports?
- How are these questions being addressed in other states?
The longer SB 263 is under consideration, the weaker it looks. Already, having gone through the Senate and one House committee, it has been amended twice. A motion to change the bill to a study committee has failed, despite the clear need for more work. Now, for procedural reasons, the bill has to go before the House Judiciary Committee, which will give the public one more chance to raise concerns. The hearing is schedule for May 15, 2019.
A similar bill, HB 383, was re-referred to committee in the Senate, which puts it on hold. Senators decided to wait and see what the House does with SB 263. When asked about SB 263 by a reporter, the Governor acknowledged that he has heard concerns about unintended consequences.
The way to address unintended consequences is not to pass a bad bill so it can be sorted out by judges and bureaucrats. Legislators have a responsibility to pass laws that are clear and that help the people of New Hampshire. SB 263 fails on both counts.