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Utah bill would make it easier to ban ‘sensitive materials’ in schools

‘No one wants kids to have pornography,’ but schools worry bill will enable handful of districts to decide statewide book bans

By Katie McKellar - Utah News Dispatch | Jan 24, 2024

Rick Bowmer, Associated Press

Amanda Darrow, director of youth, family and education programs at the Utah Pride Center, poses with books that have been the subject of complaints from parents in Salt Lake City on Dec. 16, 2021. The wave of attempted book banning and restrictions continues to intensify, the American Library Association reported Friday, Sept. 16, 2022.

In their continuing efforts to ban "pornographic" books and materials in schools and libraries, a Utah lawmaker and parent activists are advancing legislation to expand on a 2022 law that allows parents to challenge certain "sensitive" materials in schools.

Rep. Ken Ivory, R-West Jordan, and parent activists argue enough time has passed since that 2022 law went into effect -- and yet they say not enough school districts are acting to remove "indecent" and "pornographic" materials.

So they're trying a new approach.

Under the latest version of HB29, if at least three school districts or at least two school districts and five charter schools determine a book or other materials to contain "objective sensitive material" it would result in a ban of those materials in school districts statewide.

The bill won approval from the House Education Committee on Tuesday on a 10-2 vote after an at times tense public hearing. It now goes to the full House for consideration.

During Tuesday's hearing, school district officials and teacher and library representatives protested the loss of "local control" under the bill, which would allow the possibility of a handful of school districts deciding for the rest of the state what books and other materials shouldn't be allowed in schools.

"First, no one wants kids to have pornography," said Rita Heagren, a retired high school math teacher and vice president of political action for the teacher union American Federation of Teachers Utah.

She credited Ivory with working "hours and hours" over the interim on the issue, but she argued a school district representing a fraction of Utahns shouldn't cast a decision for the rest of the state.

"That's the definition of minority rule," Heagren said.

The Utah Education Association also opposes the bill for the same reason, concerned about allowing a "statewide ban" on certain materials.

"Literally, a couple of individuals in just a couple of communities can usurp the ability of locally-elected school boards to represent their own constituents by holding a review process," said Sara Jones with the Utah Education Association. "More importantly, a couple of individuals making these complaints can usurp the ability of every other parent in the state to make choices for their child through their representation at their local school board level."

Ivory and several Republican lawmakers sitting on the committee argued that if a book is deemed "objective" sensitive material -- also defined as "criminally harmful material" under current state law -- by one school district, that should be enough to pull it from shelves across Utah. But his bill starts with three.

"Just like any other crime, we don't decide if cocaine is illegal from one county to another," Ivory said. "What this bill now does is it provides for clarity in the implementation and then uniformity across the state in how we apply the standards that (are) already in law as to what is criminally indecent."

What would the bill do?

Currently, Utah law defines "sensitive material" as instructional material that is "pornographic or indecent." Now, with HB29 Ivory wants to refine definitions of what is "objective" or "subjective" sensitive material and outline different pathways that would allow them to be pulled from school and library shelves.

Under HB29, if a school receives a complaint or challenge about a book, district officials would first decide if it contains "objective" sensitive material, and if it does, they would be required to pull the book and they wouldn't need to conduct a review.

The bill would define "objective sensitive material" as instructional material that "constitutes pornagraphic or indecent material" such as "human genitals in a state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse, or sodomy" or "fondling or other erotic touching of human genitals or pubic region," under current state code.

If a district determines a book contains "objective" sensitive material, it could be pulled faster. However, if district officials determined a book does not contain "objective sensitive material" the district must conduct a review of the book and whether it includes "subjective sensitive material."

The district's review must "prioritize protecting children from the harmful effects of illicit pornography over other considerations in evaluating instructional material," according to the bill. It would also require the district to allow a student to access the challenged book if the student's parent gives consent while the district conducts its review.

The bill would define "subjective sensitive material" as instructional material that "constitutes pornographic or indecent material" as "material that is harmful to minors" under current Utah code, which includes representations of "nudity, sexual conduct, sexual excitement, or sadomasochistic abuse," and when taken as a whole, "does not have serious value for minors."

Ultimately, districts' school boards would have the final say on whether the book or material gets pulled from shelves.

The debate

The bill's proponents argued it would help protect children from explicit material.

Brooke Stephens, with Utah Parents United, one of the parents' rights groups that have pushed for the bill, said despite the 2022 law's passage, there are still close to 100 book titles in Utah schools considered concerning based on a rating system she uses for her website, which she said tracks inappropriate books.

Stephens pointed specifically to one young adult book titled "Empire of Storm" as having "explicit descriptions of intercourse" including words like "undulating, thrusting, trembling, slamming, blasting, arching, searing, releasing and groaning." She said it's been banned from five Utah school districts, but was "just recently retained by a junior high in Park City and still sits in an elementary school."

"We need this bill to protect Utah's children when districts refuse to proactively follow the law," Stephens said.

Brian Ferguson, a retired teacher librarian from Davis School District, said he's "very concerned" that Utah lawmakers have been "making it easier for organized groups of chronically outraged people to ban books from schools."

"Just because a few loud teacher-hating groups have decided to rabidly prowl our school libraries looking for any excuse to burn books does not mean that this Legislature should encourage them," Ferguson said, arguing "censorship by the minority undermines the First Amendment and it undermines people's right to read what they choose."

Why another bill?

Ivory sponsored the 2022 legislation in response to calls from parents' rights activists, including the group Utah Parents United, amid a wave of laws targeting what materials should be available in schools and libraries, especially those about race, gender and sexuality.

But then, Utah made national headlines last year after Davis School District banned (then later returned) the Bible from some schools after an unnamed person challenged the Bible in protest of the 2022 law.

"Utah Parents United left off one of the most sex-ridden books around: The Bible," the challenge said, the Associated Press reported, referring to one of the primary groups involved in Utah's curriculum battles. "You'll no doubt find that the Bible ... has no serious values for minors because it's pornographic by our new definition. ... If the books that have been banned so far are any indication for way lesser offenses, this should be a slam dunk."

After the Bible challenge, Ivory told the AP lawmakers should revise the law. HB29 aims to clarify the 2022 law's implementation and "uniformity," he said.

Peter Bromberg, co-chairman of the Utah Library Association, told lawmakers on Tuesday there are some provisions they like in the bill -- like measures limiting the number of times a person can challenge a book because challenges can get expensive -- but he suggested the bill require all materials be weighed "as a whole."

Bromberg said judging books by "excerpts taken out of context" rather than as a whole can "as we have seen, lead to books like the Bible and other valued texts being challenged and removed from the shelves."

Before the committee's vote, Rep. Joseph Elison, R-Toquerville, argued in support of Ivory's bill, saying he believes Utah's teachers and librarians are "wonderful professionals." However, "just because everybody's trying to do their best doesn't mean that there's still not books that need to be removed."

Elison argued HB29 draws a line for what can be found in schools. "And if parents still want to have this kind of smut in front of their kids, they can go buy it online if that's what they want," he said.

Rep. Carol Spackman Moss, D-Holladay, who worked as a teacher, opposed the bill, noting that her district, Granite School District, set up a policy that cost $100,000 and 100 hours of time to adhere to the 2022 law. To "switch it now," she said, "doesn't seem like it's the right policy."

House Minority Leader Angela Romero, D-Salt Lake City, also voted against the bill, saying she also doesn't "want pornography in our schools," but she worries it "goes too far."

"We have to remember that you can live in a small town in Utah, an urban setting, a suburb. And the lived experiences of those individuals are going to be different," Romero said. She added she's concerned "we're erasing people's histories, we're telling people how to think and what to do."

To conclude his presentation, Ivory tried to read a sexually graphic passage before he was cut off by a point of order.

"Does that not make the point?" he said. "This is a meeting of adults for Pete's sake. ...  This is uncomfortable, I agree. But sadly, for three years now, I've been hearing, 'It's not that bad. We need to let people decide. How prudish.'"

Ivory questioned whether schools should be allowed to offer books to their students if they're considered too indecent to be discussed in a legislative hearing. He argued the books in question are not like "Catcher in the Rye," a book that's been challenged or removed from schools for a variety of reasons, including vulgar language and sexual content.

"It's not 'Catcher in the Rye.' This is horrific material that we can't even bear to hear of a meeting of adults, understandably," Ivory said. "Please, let's get this out of the presence of our children."

Utah News Dispatch is a nonprofit, nonpartisan news source covering government, policy and the issues most impacting the lives of Utahns.

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