Anti-Discrimination Law Adds Protection for New Hampshire Students

At the recommendation of the Governor’s Advisory Council on Diversity and Inclusion, New Hampshire law now offers protections against discrimination for students in public schools.  Senate Bill 263 became effective September 17, 2019, and creates a new section of law entitled “Discrimination in Public Schools.”  The law provides that “no person shall be excluded from participation in, denied the benefits of, or be subject to discrimination in public schools because of their age, sex, gender identity, sexual orientation, race, color, marital status, familiar status, disability, religion, or national origin, all as defined in RSA 354-A.”  In the words of Governor Chris Sununu, children “deserve nothing less than the same protections provided to adults in housing, employment, and public accommodations.”

The law allows a student claiming discrimination to initiate a civil lawsuit against a school or school district in superior court for legal or equitable relief, or with the New Hampshire Commission for Human Rights.  The attorney general may also initiate such civil action.  This is a significant change to the usual course of actions alleging discrimination, which generally must be brought to the Human Rights Commission within 180 days of the last date of discrimination, before being removed to superior court.

The law also requires that each school district and chartered public school develop policies on how to prevent discrimination and how to respond to incidents when they arise.

Federal anti-discrimination laws, such as Title IX (which protects people from discrimination based on sex in education programs that received federal financial assistance) apply in public schools already and allow students to seek remedies under them in federal court.  SB 263 will permit similar civil lawsuits to be brought and tried in state courts.  This could be significant because the state law is broader in some ways than federal law.  For example, Title IX does not include protections for gender identity or sexual orientation, but New Hampshire’s Law Against Discrimination does offer protections to those groups.

During the legislative process, critics argued the law would invite a flood of lawsuits.  While Governor Sununu ultimately signed the bill into law, he also purportedly stated that his administration will work with the Human Rights Commission and Department of Justice to monitor the bill’s implementation and bring forward proposed changes in the future if necessary.

It will be interesting to see whether there is an uptick in claims as a result of this new law, and if so, where plaintiffs choose to file their lawsuits.  The Human Rights Commission historically faces deep backlogs with cases taking over a year to be investigated.  Students looking for speedier relief may want to consider using the new law to file directly in superior court.  This law may also signal a willingness by the Legislature to allow other cases to pass over the Human Rights Commission and go directly to superior court.

About the Author: Lindsay Nadeau

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