1
2
3
4
5
6 Cosponsors:
7 Cheryl K. Acton
8 Carl R. Albrecht
9 Stewart E. Barlow
10 Kera Birkeland
11 Bridger Bolinder
12 Walt Brooks
13 Jefferson S. Burton
14 Kay J. Christofferson
15 Tyler Clancy
16 Joseph Elison
17 Stephanie Gricius
Katy Hall
Colin W. Jack
Tim Jimenez
Dan N. Johnson
Michael L. Kohler
Trevor Lee
Karianne Lisonbee
Steven J. Lund
Phil Lyman
A. Cory Maloy
Jefferson Moss
Michael J. Petersen
Thomas W. Peterson
Candice B. Pierucci
Judy Weeks Rohner
Rex P. Shipp
Keven J. Stratton
Mark A. Strong
Jordan D. Teuscher
R. Neil Walter
Raymond P. Ward
Christine F. Watkins
Stephen L. Whyte
Ryan D. Wilcox
18
19 LONG TITLE
20 General Description:
21 This bill amends provisions regarding the evaluation of instructional material to
22 identify and remove pornographic or indecent material.
23 Highlighted Provisions:
24 This bill:
25 ▸ defines terms;
26 ▸ requires the prioritization of protecting children from illicit pornography over other
27 considerations in evaluating instructional material;
28 ▸ specifies individuals who may trigger a formal sensitive material review;
29 ▸ establishes certain required processes for the evaluation and review of sensitive
30 material allegations, including distinct requirements for objective sensitive material
31 and subjective sensitive material;
32 ▸ requires certain actions statewide if a certain threshold of local education agencies
33 determine that the instructional material constitutes objective sensitive material,
34 subject to a vote of the state board to overturn the statewide action in certain
35 circumstances;
36 ▸ provides indemnification for claims arising from sensitive materials requirements;
37 ▸ requires the Office of the Legislative Auditor General to audit school district
38 compliance with sensitive materials requirements; and
39 ▸ makes technical and conforming changes.
40 Money Appropriated in this Bill:
41 None
42 Other Special Clauses:
43 This bill provides a special effective date.
44 Utah Code Sections Affected:
45 AMENDS:
46 53G-10-103, as enacted by Laws of Utah 2022, Chapter 377
47
48 Be it enacted by the Legislature of the state of Utah:
49 Section 1. Section 53G-10-103 is amended to read:
50 53G-10-103. Sensitive instructional materials.
51 (1) As used in this section:
52 (a) (i) "Instructional material" means a material, regardless of format, used:
53 (A) as or in place of textbooks to deliver curriculum within the state curriculum
54 framework for courses of study by students; or
55 (B) to support a student's learning in [
56 (ii) "Instructional material" includes reading materials, handouts, videos, digital
57 materials, websites, online applications, and live presentations.
58 (iii) "Instructional material" does not mean exclusively library materials.
59 (b) "LEA governing board" means:
60 (i) for a school district, the local school board;
61 (ii) for a charter school, the charter school governing board; or
62 (iii) for the Utah Schools for the Deaf and the Blind, the state board.
63 (c) "Material" means the same as that term is defined in Section 76-10-1201.
64 (d) "Minor" means any person less than 18 years old.
65 (e) "Objective sensitive material" means an instructional material that constitutes
66 pornographic or indecent material, as that term is defined in Section 76-10-1235, under the
67 non-discretionary standards described in Subsection 76-10-1227(1)(a)(i), (ii), or (iii).
68 [
69 (i) a district school;
70 (ii) a charter school; or
71 (iii) the Utah Schools for the Deaf and the Blind.
72 [
73 (A) in a classroom;
74 (B) in a school library; or
75 (C) on school property.
76 (ii) "School setting" includes the following activities that an organization or individual
77 or organization outside of a public school conducts, if a public school or an LEA sponsors or
78 requires the activity:
79 (A) an assembly;
80 (B) a guest lecture;
81 (C) a live presentation; or
82 (D) an event.
83 [
84
85 sensitive material or subjective sensitive material.
86 (ii) "Sensitive material" does not include an instructional material:
87 (A) that an LEA selects under Section 53G-10-402;
88 (B) for a concurrent enrollment course that contains sensitive material and for which a
89 parent receives notice from the course provider of the material before enrollment of the parent's
90 child and gives the parent's consent by enrolling the parent's child;
91 [
92 [
93 [
94 (iii) "Subjective sensitive material" means an instructional material that constitutes
95 pornographic or indecent material, as that term is defined in Section 76-10-1235, under the
96 following factor-balancing standards:
97 (A) material that is harmful to minors under Section 76-10-1201;
98 (B) material that is pornographic under Section 76-10-1203; or
99 (C) material that includes certain fondling or other erotic touching under Subsection
100 76-10-1227(1)(a)(iv).
101 (2) (a) Sensitive materials are prohibited in the school setting.
102 (b) A public school or an LEA may not:
103 (i) adopt, use, distribute, provide a student access to, or maintain in the school setting,
104 sensitive materials; or
105 (ii) permit a speaker or presenter in the school setting to display or distribute sensitive
106 materials.
107 (c) In evaluating, selecting, or otherwise considering action related to a given
108 instructional material under this section, each public school and each LEA shall prioritize
109 protecting children from the harmful effects of illicit pornography over other considerations in
110 evaluating instructional material.
111 (d) If an instructional material constitutes objective sensitive material:
112 (i) a public school or an LEA is not required to engage in a review under a subjective
113 sensitive material standard; and
114 (ii) the outcome of a subjective sensitive material evaluation has no bearing on the
115 non-discretionary objective sensitive material conclusion.
116 (3) (a) Except as provided in Subsection (3)(b), the following individuals may initiate a
117 sensitive material review under this section:
118 (i) an employee of the relevant LEA;
119 (ii) a student who is enrolled in the relevant LEA;
120 (iii) a parent of a child who is enrolled in the relevant LEA; or
121 (iv) a member of the relevant LEA governing board.
122 (b) (i) As used in this Subsection (3)(b), "unsuccessful challenge" means an allegation
123 that a given instructional material constitutes sensitive material that the LEA concludes to be
124 erroneous, either on direct review or on appeal to the LEA governing board, resulting in the
125 retention of the given instructional material.
126 (ii) Notwithstanding Subsection (3)(a), after an individual makes three unsuccessful
127 challenges during a given academic year, the individual may not trigger a sensitive material
128 review under this section during the remainder of the given academic year.
129 [
130 (4) Upon receipt of an allegation from an individual described in Subsection (3)(a), an
131 LEA shall:
132 (a) (i) make an initial determination as to whether the allegation presents a plausible
133 claim that the challenged instructional material constitutes sensitive material, including
134 whether the allegation includes excerpts and other evidence to support the allegation; and
135 (ii) if the LEA determines that the allegation presents a plausible claim that the
136 challenged instructional material constitutes sensitive material under Subsection (4)(a)(i),
137 immediately remove the challenged material from any school setting that provides student
138 access to the challenged material until the LEA completes the LEA's full review of the
139 challenged material under this section;
140 (b) (i) engage in a review of the allegations and the challenged instructional material
141 using the objective sensitive material standards; and
142 (ii) if the LEA makes a determination that the challenged instructional material
143 constitutes objective sensitive material, ensure that the material remains inaccessible to
144 students in any school setting;
145 (c) only if the LEA makes a determination that the challenged instructional material
146 does not constitute objective sensitive material:
147 (i) review the allegations and the challenged instructional material under the subjective
148 material standards, ensuring that the review includes parents who are reflective of the members
149 of the school's community when determining if an instructional material is subjective sensitive
150 material[
151 (ii) allow student access to the challenged instructional material during the LEA's
152 subjective sensitive material review if the student's parent gives consent regarding the specific
153 challenged instructional material; and
154 (iii) if the LEA makes a determination that the challenged instructional material
155 constitutes subjective sensitive material, ensure that the material is inaccessible to students in
156 any school setting, including the termination of the parent consent option described in
157 Subsection (4)(c)(ii); and
158 (d) communicate to the state board the allegation and the LEA's final determination
159 regarding the allegation and the challenged instructional material.
160 (5) (a) An individual described in Subsection (3)(a) may appeal an LEA's decision
161 regarding a sensitive material review, regardless of whether the LEA removed or retained the
162 challenged instructional material, to the LEA governing board.
163 (b) An LEA governing board shall vote in a public board meeting to decide the
164 outcome of a sensitive material review appeal, clearly identifying:
165 (i) the board's rationale for the decision; and
166 (ii) the board's determination on each component of the statutory and any additional
167 policy standards the board uses to reach the board's conclusions.
168 (6) An LEA governing board may not enact rules or policies that prevent the LEA
169 governing board from:
170 (a) revisiting a previous decision;
171 (b) reviewing a recommendation of LEA personnel or a parent-related committee
172 regarding a challenged instructional material; or
173 (c) reconsidering a challenged instructional material if the LEA governing board
174 receives additional information regarding the material.
175 (7) (a) Except as provided in Subsection (7)(d), if the threshold described in Subsection
176 (7)(b) is met, each LEA statewide shall remove the relevant instructional material from student
177 access.
178 (b) The requirement described in Subsection (7)(a) to remove a given material from
179 student access applies if the following number of LEAs makes a determination that a given
180 instructional material constitutes objective sensitive material:
181 (i) at least three school districts; or
182 (ii) at least two school districts and five charter schools.
183 (c) The state board shall:
184 (i) aggregate allegations and LEA determinations described in Subsection (4)(d); and
185 (ii) no later than 10 school days after the day on which the condition described in
186 Subsection (7)(b) occurs, communicate to all LEAs the application of the requirement
187 described in Subsection (7)(a) to remove the material from student access.
188 (d) (i) When the threshold described in Subsection (7)(b) is met for a given
189 instructional material, in addition to making the communication described in Subsection (7)(c),
190 the state board may:
191 (A) place the material on the agenda of a public board meeting within 60 days after the
192 day on which the state board makes the communication to LEAs under Subsection (7)(c); and
193 (B) at the specified state board meeting, vote to overturn the application of the
194 requirement described in Subsection (7)(a) to remove a given material from student access
195 statewide.
196 (ii) If the state board votes to overturn the application of the statewide removal
197 requirement described in Subsection (7)(a) under Subsection (7)(d)(i):
198 (A) the statewide removal requirement described in Subsection (7)(a) no longer
199 applies;
200 (B) an LEA may choose to return the given material to student access; and
201 (C) nothing affects the findings of an LEA governing board regarding removal of the
202 given material within the board's LEA.
203 (e) This Subsection (7) applies to sensitive materials that LEAs remove from student
204 access, regardless of whether:
205 (i) the sensitive material determinations occur in the same academic year; or
206 (ii) a sensitive material determination occurred before July 1, 2024.
207 [
208 (a) in consultation with the Office of the Attorney General, provide guidance and
209 training to support public schools in identifying instructional materials that meet the definition
210 of sensitive materials under this section; [
211 (b) establish a process through which an individual described in Subsection (3)(a) may
212 report to the state board an allegation that an LEA is out of compliance with this section; and
213 [
214
215 implementation and compliance with this section, including:
216 (i) any policy the state board or an LEA adopts to implement or comply with this
217 section;
218 (ii) any rule the state board makes to implement or comply with this section; and
219 (iii) any complaints an LEA or the state board receives regarding a violation of this
220 section, including:
221 (A) action taken in response to a complaint described in this Subsection [
222 (8)(c)(iii); [
223 (B) if an LEA retains an instructional material for which the LEA or the state board
224 receives a complaint, the LEA's rationale for retaining the instructional material[
225 (C) compliance failures that the state board identifies through the reporting process
226 described in Subsection (8)(b) and other investigations or research.
227 (9) The state shall defend, indemnify, and hold harmless a person acting under color of
228 state law to enforce this section for any claims or damages, including court costs and attorney
229 fees, that:
230 (a) a person brings or incurs as a result of this section; and
231 (b) is not covered by the person's insurance policies or any coverage agreement that the
232 State Risk Management Fund issues.
233 (10) Subject to prioritization of the Audit Subcommittee created in Section 36-12-8,
234 the Office of the Legislative Auditor General shall:
235 (a) conduct an audit of each school district's compliance with this section, ensuring the
236 completion of all school district audits before November 2028; and
237 (b) annually report to the Education Interim Committee regarding completed sensitive
238 material audits under this Subsection (10).
239 Section 2. Effective date.
240 This bill takes effect on July 1, 2024.