This document includes House Committee Amendments incorporated into the bill on Wed, Jan 24, 2024 at 10:40 AM by housengrossing.
1     
SENSITIVE MATERIAL REVIEW AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Ken Ivory

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     Ĥ→ [Committee Note:
9          The Education Interim Committee recommended this bill.
10               Legislative Vote:     10 voting for     4 voting against     6 absent] ←Ĥ
11     General Description:
12          This bill amends provisions regarding the evaluation of instructional material to
13     identify and remove pornographic or indecent material.
14     Highlighted Provisions:
15          This bill:
16          ▸     defines terms;
17          ▸     requires the prioritization of protecting children from illicit pornography over other
18     considerations in evaluating instructional material;
19          ▸     specifies individuals who may trigger a formal sensitive material review;
20          ▸     establishes certain required processes for the evaluation and review of sensitive
21     material allegations, including distinct requirements for objective sensitive material
22     and subjective sensitive material;
23          ▸     requires the removal of certain instructional material statewide if a certain threshold
24     of local education agencies determine that the instructional material constitutes
25     objective sensitive material;
26          ▸     provides indemnification for claims arising from sensitive materials requirements;
27          ▸     requires the Office of the Legislative Auditor General to audit school district
28     compliance with sensitive materials requirements; and
29          ▸     makes technical and conforming changes.
30     Money Appropriated in this Bill:
31          None
32     Other Special Clauses:
33          This bill provides a special effective date.
34     Utah Code Sections Affected:
35     AMENDS:
36          53G-10-103, as enacted by Laws of Utah 2022, Chapter 377
37     

38     Be it enacted by the Legislature of the state of Utah:
39          Section 1. Section 53G-10-103 is amended to read:
40          53G-10-103. Sensitive instructional materials.
41          (1) As used in this section:
42          (a) (i) "Instructional material" means a material, regardless of format, used:
43          (A) as or in place of textbooks to deliver curriculum within the state curriculum
44     framework for courses of study by students; or
45          (B) to support a student's learning in [the] any school setting.
46          (ii) "Instructional material" includes reading materials, handouts, videos, digital
47     materials, websites, online applications, and live presentations.
48          (iii) "Instructional material" does not mean exclusively library materials.
49          (b) "LEA governing board" means:
50          (i) for a school district, the local school board;
51          (ii) for a charter school, the charter school governing board; or
52          (iii) for the Utah Schools for the Deaf and the Blind, the state board.
53          (c) "Material" means the same as that term is defined in Section 76-10-1201.
54          (d) "Minor" means any person less than 18 years old.
55          (e) "Objective sensitive material" means an instructional material that constitutes
56     pornographic or indecent material, as that term is defined in Section 76-10-1235, under the
57     non-discretionary standards described in Subsection 76-10-1227(1)(a)(i), (ii), or (iii).
58          [(e)] (f) "Public school" means:
59          (i) a district school;
60          (ii) a charter school; or
61          (iii) the Utah Schools for the Deaf and the Blind.
62          [(f)] (g) (i) "School setting" means, for a public school:
63          (A) in a classroom;
64          (B) in a school library; or
65          (C) on school property.
66          (ii) "School setting" includes the following activities that an organization or individual
67     or organization outside of a public school conducts, if a public school or an LEA sponsors or
68     requires the activity:
69          (A) an assembly;
70          (B) a guest lecture;
71          (C) a live presentation; or
72          (D) an event.
73          [(g)] (h) (i) "Sensitive material" means an instructional material that [is pornographic
74     or indecent material as that term is defined in Section 76-10-1235] constitutes objective
75     sensitive material or subjective sensitive material.
76          (ii) "Sensitive material" does not include an instructional material:
77          (A) that an LEA selects under Section 53G-10-402;
77a     Ĥ→ (B) for a concurrent enrollment course that contains sensitive material and for which a
77b     parent receives notice from the course provider of the material before enrolling and gives the
77c     parent's consent by enrolling; ←Ĥ
78          Ĥ→ [(B)] (C) ←Ĥ for medical courses;
79          Ĥ→ [(C)] (D) ←Ĥ for family and consumer science courses; or
80          Ĥ→ [(D)] (E) ←Ĥ for another course the state board exempts in state board rule.
81          (iii) "Subjective sensitive material" means an instructional material that constitutes
82     pornographic or indecent material, as that term is defined in Section 76-10-1235, under the
83     following factor-balancing standards:
84          (A) material that is harmful to minors under Section 76-10-1201;
85          (B) material that is pornographic under Section 76-10-1203; or
86          (C) material that includes certain fondling or other erotic touching under Subsection
87     76-10-1227(1)(a)(iv).
88          (2) (a) Sensitive materials are prohibited in the school setting.
89          (b) A public school or an LEA may not:
90          (i) adopt, use, distribute, provide a student access to, or maintain in the school setting,
91     sensitive materials; or
92          (ii) permit a speaker or presenter in the school setting to display or distribute sensitive
93     materials.
94          (c) In evaluating, selecting, or otherwise considering action related to a given
95     instructional material under this section, each public school and each LEA shall prioritize
96     protecting children from the harmful effects of illicit pornography over other considerations in
97     evaluating instructional material.
98          (d) If an instructional material constitutes objective sensitive material:
99          (i) a public school or an LEA is not required to engage in a review under a subjective
100     sensitive material standard; and
101          (ii) the outcome of a subjective sensitive material evaluation has no bearing on the
102     non-discretionary objective sensitive material conclusion.
103          (3) (a) Except as provided in Subsection (3)(b), the following individuals may initiate a
104     sensitive material review under this section:
105          (i) an employee of the relevant LEA;
106          (ii) a student who is enrolled in the relevant LEA;
107          (iii) a parent of a child who is enrolled in the relevant LEA; or
108          (iv) an elected official who represents an area that includes all or part of the relevant
109     LEA.
110          (b) (i) As used in this Subsection (3)(b), "unsuccessful challenge" means an allegation
111     that a given instructional material constitutes sensitive material that the LEA concludes to be
112     erroneous, either on direct review or on appeal to the LEA governing board, resulting in the
113     retention of the given instructional material.
114          (ii) Notwithstanding Subsection (3)(a), after an individual makes three unsuccessful
115     challenges during a given academic year, the individual may not trigger a sensitive material
116     review under this section during the remainder of the given academic year.
117          [(3) An LEA shall include] (4) Upon receipt of an allegation from an individual
118     described in Subsection (3)(a), an LEA shall:
119          (a) (i) make an initial determination as to whether the allegation presents a plausible
120     claim that the challenged instructional material constitutes sensitive material, including
121     whether the allegation includes excerpts and other evidence to support the allegation; and
122          (ii) if the LEA determines that the allegation presents a plausible claim that the
123     challenged instructional material constitutes sensitive material under Subsection (4)(a)(i),
124     immediately remove the challenged material from any school setting that provides student
125     access to the challenged material until the LEA completes the LEA's full review of the
126     challenged material under this section;
127          (b) (i) engage in a review of the allegations and the challenged instructional material
128     using the objective sensitive material standards; and
129          (ii) if the LEA makes a determination that the challenged instructional material
130     constitutes objective sensitive material, ensure that the material remains inaccessible to
131     students in any school setting;
132          (c) only if the LEA makes a determination that the challenged instructional material
133     does not constitute objective sensitive material Ĥ→ [review] ←Ĥ :
134          (i) review the allegations and the challenged instructional material under the subjective
135     material standards, ensuring that the review includes parents who are reflective of the members
136     of the school's community when determining if an instructional material is subjective sensitive
137     material[.];
138          (ii) allow student access to the challenged instructional material during the LEA's
139     subjective sensitive material review if the student's parent gives consent regarding the specific
140     challenged instructional material; and
141          (iii) if the LEA makes a determination that the challenged instructional material
142     constitutes Ĥ→ [objective] subjective ←Ĥ sensitive material, ensure that the material is
142a     inaccessible to students in
143     any school setting, including the termination of the parent consent option described in
144     Subsection (4)(c)(ii); and
145          (d) communicate to the state board the allegation and the LEA's final determination
146     regarding the allegation and the challenged instructional material.
147          (5) (a) An individual described in Subsection (3)(a) may appeal an LEA's decision
148     regarding a sensitive material review, regardless of whether the LEA removed or retained the
149     challenged instructional material, to the LEA governing board.
150          (b) An LEA governing board shall vote in a public board meeting to decide the
151     outcome of a sensitive material review appeal, clearly identifying:
152          (i) the board's rationale for the decision; and
153          (ii) the board's determination on each component of the statutory and any additional
154     policy standards the board uses to reach the board's conclusions.
155          (6) An LEA governing board may not enact rules or policies that prevent the LEA
156     governing board from:
157          (a) revisiting a previous decision;
158          (b) reviewing a recommendation of LEA personnel or a parent-related committee
159     regarding a challenged instructional material; or
160          (c) reconsidering a challenged instructional material if the LEA governing board
161     receives additional information regarding the material.
162          (7) (a) If the following number of LEAs makes a determination that a given
163     instructional material constitutes objective sensitive material, each LEA statewide shall remove
164     the relevant instructional material from student access within the LEA:
165          (i) at least three school districts; or
166          (ii) at least two school districts and five charter schools.
167          (b) The state board shall:
168          (i) aggregate allegations and LEA determinations described in Subsection (4)(d); and
169          (ii) no later than 10 school days after the day on which the condition described in
170     Subsection (7)(a) occurs, communicate to all LEAs the application of the requirement to
171     remove a given instructional material from student access under Subsection (7)(a).
172          (c) This Subsection (7) applies to sensitive materials that LEAs remove from student
173     access, regardless of whether:
174          (i) the sensitive material determinations occur in the same academic year; or
175          (ii) a sensitive material determination occurred before July 1, 2024.
176          [(4)] (8) The state board shall:
177          (a) in consultation with the Office of the Attorney General, provide guidance and
178     training to support public schools in identifying instructional materials that meet the definition
179     of sensitive materials under this section; [and]
180          (b) establish a process through which an individual described in Subsection (3)(a) may
181     report to the state board an allegation that an LEA is out of compliance with this section; and
182          [(b)] (c) annually report to the Education Interim Committee [and the Government
183     Operations Interim Committee], at or before the November [2022] interim meeting, on
184     implementation and compliance with this section, including:
185          (i) any policy the state board or an LEA adopts to implement or comply with this
186     section;
187          (ii) any rule the state board makes to implement or comply with this section; and
188          (iii) any complaints an LEA or the state board receives regarding a violation of this
189     section, including:
190          (A) action taken in response to a complaint described in this Subsection [(4)(b)(iii)]
191     (8)(c)(iii); [and]
192          (B) if an LEA retains an instructional material for which the LEA or the state board
193     receives a complaint, the LEA's rationale for retaining the instructional material[.]; and
194          (C) compliance failures that the state board identifies through the reporting process
195     described in Subsection (8)(b) and other investigations or research.
196          (9) The state shall defend, indemnify, and hold harmless a person acting under color of
197     state law to enforce this section for any claims or damages, including court costs and attorney
198     fees, that:
199          (a) a person brings or incurs as a result of this section; and
200          (b) is not covered by the person's insurance policies or any coverage agreement that the
201     State Risk Management Fund issues.
202          (10) Subject to prioritization of the Audit Subcommittee created in Section 36-12-8,
203     the Office of the Legislative Auditor General shall:
204          (a) conduct an audit of each school district's compliance with this section, ensuring the
205     completion of all school district audits before November 2028; and
206          (b) annually report to the Education Interim Committee regarding completed sensitive
207     material audits under this Subsection (10).
208          Section 2. Effective date.
209          This bill takes effect on July 1, 2024.