Section 1. Section 53G-10-103 is amended to read:53G-10-103. Sensitive instructional materials.(1)As used in this section:(a)(i)"Instructional material" means a material, regardless of format, used:(A)as or in place of textbooks to deliver curriculum within the state curriculum framework for courses of study by students; or(B)to support a student's learning in any school setting.(ii)"Instructional material" includes reading materials, handouts, videos, digital materials, websites, online applications, and live presentations.(iii)"Instructional material" does not mean exclusively library materials.(b)"LEA governing board" means:(i)for a school district, the local school board;(ii)for a charter school, the charter school governing board; or(iii)for the Utah Schools for the Deaf and the Blind, the state board.(c)"Material" means the same as that term is defined in Section 76-5c-101.(d)"Minor" means any person less than 18 years old.(e)"Objective sensitive material" means an instructional material that constitutes pornographic or indecent material, as that term is defined in Section 76-5c-208, under the non-discretionary standards described in Subsections 76-5c-207(1)(a)(i)(A), (B), or (C).(f)"Public school" means:(i)a district school;(ii)a charter school; or(iii)the Utah Schools for the Deaf and the Blind.(g)(i)"School setting" means, for a public school:(A)in a classroom;(B)in a school library; or(C)on school property.(ii)"School setting" includes the following activities that an organization or individual or organization outside of a public school conducts, if a public school or an LEA sponsors or requires the activity:(A)an assembly;(B)a guest lecture;(C)a live presentation; or(D)an event.(h)(i)"Sensitive material" means an instructional material that constitutes objective sensitive material or subjective sensitive material.(ii)"Sensitive material" does not include an instructional material:(A)that an LEA selects under Section 53G-10-402;(B)for a concurrent enrollment course that contains sensitive material and for which a parent receives notice from the course provider of the material before enrollment of the parent's child and gives the parent's consent by enrolling the parent's child;(C)for medical courses;(D)for family and consumer science courses; or(E)for another course the state board exempts in state board rule.(iii)"Subjective sensitive material" means an instructional material that constitutes pornographic or indecent material, as that term is defined in Section 76-5c-208, under the following factor-balancing standards:(A)material that is harmful to minors under Section 76-5c-101;(B)material that is pornographic under Section 76-5c-101; or(C)material that includes certain fondling or other erotic touching under Subsection 76-5c-207(1)(a)(i)(D).(2)(a)SensitiveExcept as provided in Subsection (2)(e), sensitive materials are prohibited in the school setting.(b)AExcept as provided in Subsection (2)(e), a public school or an LEA may not:(i)adopt, use, distribute, provide a student access to, or maintain in the school setting, sensitive materials; or(ii)permit a speaker or presenter in the school setting to display or distribute sensitive materials.(c)In evaluating, selecting, or otherwise considering action related to a given instructional material under this section, each public school and each LEA shall prioritize protecting children from the harmful effects of illicit pornography over other considerations in evaluating instructional material.(d)If an instructional material constitutes objective sensitive material:(i)a public school or an LEA is not required to engage in a review under a subjective sensitive material standard; and(ii)the outcome of a subjective sensitive material evaluation has no bearing on the non-discretionary objective sensitive material conclusion.(e)The prohibitions described in Subsections (2)(a) and (2)(b) do not apply to and may not be enforced against a specific sensitive material if the application or enforcement of Subsections (2)(a) and (2)(b) against the specific sensitive material would violate the:(i)United States Constitution; or(ii)Utah Constitution.(3)(a)Except as provided in Subsection (3)(b), the following individuals may initiate a sensitive material review under this section:(i)an employee of the relevant LEA;(ii)a student who is enrolled in the relevant LEA;(iii)a parent of a child who is enrolled in the relevant LEA; or(iv)a member of the relevant LEA governing board.(b)(i)As used in this Subsection (3)(b), "unsuccessful challenge" means an allegation that a given instructional material constitutes sensitive material that the LEA concludes to be erroneous, either on direct review or on appeal to the LEA governing board, resulting in the retention of the given instructional material.(ii)Notwithstanding Subsection (3)(a), after an individual makes three unsuccessful challenges during a given academic year, the individual may not trigger a sensitive material review under this section during the remainder of the given academic year.(4)Upon receipt of an allegation from an individual described in Subsection (3)(a), an LEA shall:(a)(i)make an initial determination as to whether the allegation presents a plausible claim that the challenged instructional material constitutes sensitive material, including whether the allegation includes excerpts and other evidence to support the allegation; and(ii)if the LEA determines that the allegation presents a plausible claim that the challenged instructional material constitutes sensitive material under Subsection (4)(a)(i), immediately remove the challenged material from any school setting that provides student access to the challenged material until the LEA completes the LEA's full review of the challenged material under this section;(b)(i)engage in a review of the allegations and the challenged instructional material using the objective sensitive material standards; and(ii)if the LEA makes a determination that the challenged instructional material constitutes objective sensitive material, ensure that the material remains inaccessible to students in any school setting;(c)only if the LEA makes a determination that the challenged instructional material does not constitute objective sensitive material:(i)review the allegations and the challenged instructional material under the subjective material standards, ensuring that the review includes parents who are reflective of the members of the school's community when determining if an instructional material is subjective sensitive material;(ii)allow student access to the challenged instructional material during the LEA's subjective sensitive material review if the student's parent gives consent regarding the specific challenged instructional material; and(iii)if the LEA makes a determination that the challenged instructional material constitutes subjective sensitive material, ensure that the material is inaccessible to students in any school setting, including the termination of the parent consent option described in Subsection (4)(c)(ii); and(d)communicate to the state board the allegation and the LEA's final determination regarding the allegation and the challenged instructional material.(5)(a)An individual described in Subsection (3)(a) may appeal an LEA's decision regarding a sensitive material review, regardless of whether the LEA removed or retained the challenged instructional material, to the LEA governing board.(b)An LEA governing board shall vote in a public board meeting to decide the outcome of a sensitive material review appeal, clearly identifying:(i)the board's rationale for the decision; and(ii)the board's determination on each component of the statutory and any additional policy standards the board uses to reach the board's conclusions.(6)An LEA governing board may not enact rules or policies that prevent the LEA governing board from:(a)revisiting a previous decision;(b)reviewing a recommendation of LEA personnel or a parent-related committee regarding a challenged instructional material; or(c)reconsidering a challenged instructional material if the LEA governing board receives additional information regarding the material.(7)(a)Except as provided in Subsection (7)(d), if the threshold described in Subsection (7)(b) is met, each LEA statewide shall remove the relevant instructional material from student access.(b)The requirement described in Subsection (7)(a) to remove a given material from student access applies if the following number of LEAs makes a determination that a given instructional material constitutes objective sensitive material:(i)at least three school districts; or(ii)at least two school districts and five charter schools.(c)The state board shall:(i)aggregate allegations and LEA determinations described in Subsection (4)(d); and(ii)no later than 10 school days after the day on which the condition described in Subsection (7)(b) occurs, communicate to all LEAs the application of the requirement described in Subsection (7)(a) to remove the material from student access.(d)(i)When the threshold described in Subsection (7)(b) is met for a given instructional material, in addition to making the communication described in Subsection (7)(c), the state board may:(A)place the material on the agenda of a public board meeting within 60 days after the day on which the state board makes the communication to LEAs under Subsection (7)(c); and(B)at the specified state board meeting, vote to overturn the application of the requirement described in Subsection (7)(a) to remove a given material from student access statewide.(ii)If the state board votes to overturn the application of the statewide removal requirement described in Subsection (7)(a) under Subsection (7)(d)(i):(A)the statewide removal requirement described in Subsection (7)(a) no longer applies;(B)an LEA may choose to return the given material to student access; and(C)nothing affects the findings of an LEA governing board regarding removal of the given material within the board's LEA.(iii)The prohibition described in Subsection (7)(a) does not apply to and may not be enforced against a specific instructional material if the application or enforcement of Subsection (7)(a) against that specific instructional material would violate the:(A)United States Constitution; or(B)Utah Constitution.(e)This Subsection (7) applies to sensitive materials that LEAs remove from student access, regardless of whether:(i)the sensitive material determinations occur in the same academic year; or(ii)a sensitive material determination occurred before July 1, 2024.(8)The state board shall:(a)in consultation with the Office of the Attorney General, provide guidance and training to support public schools in identifying instructional materials that meet the definition of sensitive materials under this section;(b)establish a process through which an individual described in Subsection (3)(a) may report to the state board an allegation that an LEA is out of compliance with this section; and(c)annually report to the Education Interim Committee, at or before the November interim meeting, on implementation and compliance with this section, including:(i)any policy the state board or an LEA adopts to implement or comply with this section;(ii)any rule the state board makes to implement or comply with this section; and(iii)any complaints an LEA or the state board receives regarding a violation of this section, including:(A)action taken in response to a complaint described in this Subsection (8)(c)(iii);(B)if an LEA retains an instructional material for which the LEA or the state board receives a complaint, the LEA's rationale for retaining the instructional material; and(C)compliance failures that the state board identifies through the reporting process described in Subsection (8)(b) and other investigations or research.(9)The state shall defend, indemnify, and hold harmless a person acting under color of state law to enforce this section for any claims or damages, including court costs and attorney fees, that:(a)a person brings or incurs as a result of this section; and(b)is not covered by the person's insurance policies or any coverage agreement that the State Risk Management Fund issues.(10)Subject to prioritization of the Audit Subcommittee created in Section 36-12-8, the Office of the Legislative Auditor General shall:(a)conduct an audit of each school district's compliance with this section, ensuring the completion of all school district audits before November 2028; and(b)annually report to the Education Interim Committee regarding completed sensitive material audits under this Subsection (10).(11)The state board and each LEA governing board shall adopt a policy that requires a school to establish a school library for the purposes of providing access only to materials that will most advance the education of a student who attends the school, while protecting a student from pornographic, indecent, and otherwise age-inappropriate content by ensuring that a school excludes these materials.(12)(a)A school may not acquire or add to the school's collection:(i)sensitive materials; or(ii)instructional material described in Subsection (7)(a).(b)With respect to this Subsection (12) only, nothing in this subsection authorizes, allows, or requires a school to remove materials that are already part of the school's collection.(13)(a)An LEA governing board may before the start of the 2027-2028 school year, request that each student and each parent of a student agree to arbitrate, on an individual basis, any claim that arises out of the enforcement or implementation of this section.(b)An LEA governing board shall comply with and enforce the requirements of this section except to the extent that:(i)a court enjoins or otherwise restrains the LEA governing board or the LEA governing board's members from enforcing one or more of the provisions of this section; or(ii)a state or federal appellate court declares particular provisions of this section unconstitutional or unenforceable.(c)The Office of the Attorney General and the state board shall advise and assist the LEA governing board in drafting an arbitration clause that complies with the requirements of Subsection (13)(a).(d)An LEA governing board may request that a student and the student's parent agree to arbitrate a claim in addition to the claim described in Subsection (13)(a).(14)An individual an LEA governing board harms through the failure to comply with the requirements of this section has a right of action against the LEA for injunctive relief to ensure compliance with this section.(15)(a)An individual who seeks declaratory or injunctive relief to prevent enforcement of this section, or who represents a litigant seeking declaratory or injunctive relief, is jointly and severally liable for the costs and reasonable attorney fees the prevailing party incurs.(b)Subsection (15)(a) applies to an action brought in state court or federal court and includes an action seeking to prevent enforcement by:(i)the state;(ii)a political subdivision;(iii)an officer, employee, or agent of the state or a political subdivision; or(iv)another individual authorized to enforce this section.(c)A party is a prevailing party if a court:(i)dismisses a claim seeking relief described in Subsection (15)(a);(ii)enters judgment in favor of the party on a claim seeking the relief; or(iii)receives a voluntary dismissal or non-suit of a claim seeking the relief.(d)A prevailing party may recover only the costs and attorney fees incurred in:(i)defending a claim on which the party prevailed; or(ii)seeking recovery of costs and attorney fees under this section.(e)A prevailing party may bring a civil action to recover costs and attorney fees under this section no later than three years after:(i)the date a dismissal or judgment becomes final after appellate review; or(ii)the expiration of the time to seek appellate review.(f)In an action brought under Subsection (15)(e), the following do not constitute a defense:(i)failure to seek costs or attorney fees in the underlying action;(ii)a court's refusal in the underlying action to apply this section; or(iii)a determination in the underlying action that a provision of this section is invalid, unconstitutional, or preempted.(g)Title 78B, Chapter 25, Uniform Public Expression Protection Act, does not apply to an action brought under Subsection (15)(e).(h) A court may not award costs or attorney fees under this Subsection (15) if the award would violate:(i)the United States Constitution;(ii)the Utah Constitution; or(iii)federal law.(16)(a)Except to the extent federal law preempts, the following immunities apply to an action that challenges the validity, enforceability, or application of this section, or seeks to prevent enforcement of this section:(i)the state, state officers, and state employees retain constitutional sovereign immunity;(ii)a political subdivision and the political subdivision's officers and employees retain governmental immunity; and(iii)officers and employees retain official immunity.(b)The immunities described in Subsection (16)(a) apply in all courts and adjudicative proceedings.(c)A provision of state law does not waive an immunity described in Subsection (16)(a) unless the provision expressly refers to this section and expressly states an intent to waive immunity.(d)An attorney representing the state, a political subdivision, or an officer or employee of the state may not waive an immunity described in Subsection (16)(a).(e)A court of this state lacks jurisdiction to:(i)grant declaratory or injunctive relief declaring this section invalid or unenforceable;(ii)restrain enforcement of this section; or(iii)restrain the filing, docketing, adjudication, or enforcement of an action this section authorizes.(f)A court may not certify a plaintiff class or defendant class in an action seeking the relief described in Subsection (16)(e).(g)This section does not prevent a litigant from asserting the invalidity or unconstitutionality of this section as a defense in an action brought against the litigant.(17)This section does not waive governmental immunity in accordance with Section 63G-7-201.(18)(a)If any one or more provision, section, subsection, sentence, clause, phrase, or word of this part, facially or as applied to any person or circumstance is found to be unconstitutional:(i)the provision, section, subsection, sentence, clause, phrase, or word is severable;(ii)the balance of this part remains effective notwithstanding the finding regarding constitutionality; and(iii)the Legislature would have passed this part, and every other part, provision, section, subsection, sentence, clause, phrase, or word, regardless of the severance described in this Subsection (18)(a).(b)This Subsection (18) applies to any provision, section, subsection, sentence, clause, phrase, or word of this part, regardless of the time of enactment, amendment, or repeal.