Policies concerning Diversity Equity and Inclusion (“DEI”) continue to be a hot topic as we close out 2025. We started off the year with a barrage of “anti-DEI” executive orders, which we reported on in mid-April 2025 (https://www.nhbr.com/dei-under-administration-47/). We highlighted the friction between federal law and rights secured under the various states, including New Hampshire. As expected, such frictions played out within the Granite State, with the signing of House Bill 2 into law, which became effective on July 1, 2025. The bill, among other things, restricts public schools, public entities, public agencies and political subdivisions (“Public Entities”) from implementing, promoting, or engaging in any DEI-related initiatives, programs, training or policies. The prohibition is broad, preventing Public Entities from entering into or renewing contracts that include DEI-related provisions. Additionally, the bill specifically addresses public schools (of all levels), preventing schools from engaging in such activities, or face being denied access to state funds. Under House Bill 2, intent or even a knowing violation of the law is not required, meaning that penalties could be imposed even if a covered party does not know or understand that their actions violate House Bill 2.
Recently, House Bill 2 was successfully challenged, resulting in a preliminary injunction, blocking enforcement of the bill as it relates to most Public Entities. There, the U.S. District Court for the District of New Hampshire found that the new law is unconstitutionally vague in defining prohibited conduct and in the parameters of its enforcement. The court’s order further explains that the definition of “DEI” in the new law is so far-reaching that it prohibits “long-accepted—even legally required—teaching and administrative practices” which would effectively restrict schools from operating at even a basic level.
The court also discussed the new law’s interaction with existing federal law, such as the Americans with Disabilities Act (“ADA”). The court found that the new law interfered with the ADA as the express purpose of the ADA is to treat qualified individuals with disabilities differently than others for the purpose of permitting such individuals access to programs and services. Accordingly, the conflict rendered the new law preempted by federal law. In issuing the injunction, the court also stated that “[s]uch self-censorship is inimical to our democracy, as ‘the right to speak freely and to promote diversity of ideas and programs is one of the chief distinctions that sets us apart from totalitarian regimes.”
Although the challenged bill impacts only those entities listed above, the court’s ruling signals a continued check on laws and policies within the State that may infringe established rights.
This ruling further underscores our assertion earlier this year that, while we are experiencing many changes in ideology at all levels of government, federal law regarding civil rights remains unchanged, even as enforcement may vary. While matters concerning DEI are far from settled, the new ruling creates an air of stability, suggesting that at minimum, federal laws such as the ADA remain unchanged.
Businesses should continue to evaluate their own DEI policies and how they interact with existing federal laws such as the ADA. Competent legal counsel can be an invaluable resource at this time, as companies seek to navigate these abrupt changes.