Members of the public attend the Education Interim Committee Meeting on Wednesday, Oct. 19, 2022, at the Utah State Capitol (Screengrab from https://le.utah.gov)
SALT LAKE CITY — The Utah State Board of Education has released data that it says provides insight into whether H.B.374 (Utah’s law banning “sensitive materials” in public schools) is fulfilling its purpose — to remove materials deemed as pornography from Utah schools.
However, the law’s sponsor, Rep. Ken Ivory (R-District 47), and a group of parents claim that there are books containing graphic content that have been allowed to stay.
H.B.374 gives school districts the power, via rules agreed upon by their local school board, to remove books deemed “pornographic or indecent.”
But, Utah Attorney General Sean Reyes’ and legislative lawyers’ interpretation of Utah laws, surrounding when a book does or does not have to be taken on the whole, has USBE still asking for clarification.
“Is the (school district) violating a right to access to free speech by removing a book?” asked the legislature’s Managing Associate General Counsel, Michael Curtis in Wednesday’s Education Interim Committee meeting. “Or is the (school district) violating a clear state statute prohibiting a material? That’s sort of the dynamic I think (schools) are in now, pick a lawsuit to defend,” he said.
Further, Curtis said he expects lawsuits over the sensitive materials law.
Representatives from the State Board of Education then presented their findings as part of the new law’s requirement to update the legislature on its implementation.
USBE reports they’ve received 279 requests for the removal of books. Of those, 122 books were retained, 84 were removed, and 63 were restricted (meaning the book may have been kept in a high school but removed from a junior high).
“None were found in an elementary school,” said Angela Stallings, USBE Deputy Superintendent of Policy.
USBE reports that a library of one large unnamed district had 200,000 unique book titles. Of those, 202 books were challenged as possibly containing sensitive material, and 42 of those were unique titles — meaning many were the same book reported more than once.
In other words, .0021% of the total library catalog received a challenge.
“That does not diminish the importance of this process,” said Patty Norman, Deputy Superintendent of Student Achievement.
Of those challenges, USBE reports three staff members, one parent, and three parent groups reported the books.
According to USBE, 10 of the 42 books were removed. And district-wide, 50 books were removed from the district’s 87 schools.
USBE calculates that this district staff spent 500 hours researching and reviewing the complaints.
“Which equated to $20,000 spent in resources of time to make a determination,” Norman said. “This is time well spent and money well invested,” Norman emphatically stated to lawmakers.
USBE staff also asked for more clarity around the interpretation of laws that allow them to remove library books.
State law bans sensitive materials in schools. Sensitive materials are defined as instructional materials that are “pornographic or indecent” that are harmful to minors.
Utah law further defines what is harmful to minors as well as pornography. Both of those definitions say a book has to be taken on the whole and assessed for its literary value.
But there’s a third criteria — Utah’s indecency law. That section, the Utah Attorney General’s office argues, says that if a depiction or description (of a book) violates any one of three criteria within that definition, the book can be pulled without taking it on the whole.
In other words, it creates a bright line rule for when a book can be pulled.
Those criteria are:
Human genitals in a state of sexual stimulation or arousal. Acts of human masturbation, sexual intercourse, or sodomy. Fondling or other erotic touching of human genitals or pubic region. Fondling or other erotic touching of the human buttock or female breast that, when taken as a whole, has no serious literary, artistic, political, or scientific value for minors, considering ages of all minors who could be exposed to the material.
The USBE’s interpretation of the law is linked to the AG’s guidance in a June memo sent to the USBE. But an original version of that memo released a month earlier, had different guidance.
The earlier memo stated that, because a three-prong test had to be used to determine if a book was harmful to minors, “this three-prong test must always be utilized when assessing whether a library book is ‘sensitive material,’” it read.
That three prong-test requires books to be taken on the whole.
(i) Taken as a whole, appeals to the prurient interest in sex of minors; (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (iii) taken as a whole, does not have serious value for minors.
It’s not clear why the memo was updated with different guidance.
That ‘bright line’ definition is what Rep. Ivory and some parents supporting him use to claim that pornography still exists in Utah schools. In a statement Thursday, a day after the interim meeting and a press event held by Ivory and supporters of the sensitive materials law, Ivory issued the following statement:
HB374 applies the same legal standard to sensitive materials provided by schools that had already been in place for years for materials students might bring to or access at school. Attorney General Sean Reyes issued a guidance memo on June 1, 2022 stating that HB374, and the standards adopted under (particularly Utah’s indecency law) ‘creates categorical exclusions or a ‘bright line’ rule.
Before the interim meeting Wednesday, KSL NewsRadio asked Ivory about the “taken on the whole” concept.
“Three judges of nine on the Supreme Court said that,” he said. “It’s not the law. It’s not a holding of the Supreme Court and yet we act as if it is.”
