Text of AZ SB 1082 (2020)

PREFILED JAN 08 2020 REFERENCE TITLE: sex education; schools State of Arizona Senate Fifty-fourth Legislature Second Regular Session 2020 SB 1082 Introduced by Senator Allen S AN ACT amending sections 13‑3501, 15‑102, 15‑115, 15‑711 and 15‑716, Arizona Revised Statutes; relating to school instruction. (TEXT OF BILL BEGINS ON NEXT PAGE) Be it enacted by the Legislature of the State of Arizona: Section 1. Section 13-3501, Arizona Revised Statutes, is amended to read: START_STATUTE13-3501. Definitions In this chapter, unless the context otherwise requires: 1. "Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual activity, sexual conduct, sexual excitement, or sadomasochistic abuse, when both: (a) To the average adult applying contemporary state standards with respect to what is suitable for minors, it both: (i) Appeals to the prurient interest, when taken as a whole. In order for an item as a whole to be found or intended to have an appeal to the prurient interest, it is not necessary that the item be successful in arousing or exciting any particular form of prurient interest either in the hypothetical average person, in a member of its intended and probable recipient group or in the trier of fact. (ii) Portrays the description or representation in a patently offensive way. (b) Taken as a whole does not have serious literary, artistic, political, or scientific value for minors. 2. "Item" means any material or performance which depicts or describes sexual activity and includes any book, leaflet, pamphlet, magazine, booklet, picture, drawing, photograph, film, negative, slide, motion picture, figure, object, article, novelty device, recording, transcription, live or recorded telephone message or other similar items whether tangible or intangible and including any performance, exhibition, transmission or dissemination of any of the above. An item also includes a live performance or exhibition which depicts sexual activity to the public or an audience of one or more persons. An item is obscene within the meaning of this chapter when all of the following apply: (a) The average person, applying contemporary state standards, would find that the item, taken as a whole, appeals to the prurient interest. In order for an item as a whole to be found or intended to have an appeal to the prurient interest, it is not necessary that the item be successful in arousing or exciting any particular form of prurient interest either in the hypothetical average person, in a member of its intended and probable recipient group or in the trier of fact. (b) The average person, applying contemporary state standards, would find that the item depicts or describes, in a patently offensive way, sexual activity as that term is described in this section. (c) The item, taken as a whole, lacks serious literary, artistic, political or scientific value. 3. "Knowledge of the character" means having general knowledge or awareness, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of that which is reasonably susceptible to examination by the defendant both: (a) That the item contains, depicts or describes nudity, sexual activity, sexual conduct, sexual excitement or sadomasochistic abuse, whichever is applicable, whether or not there is actual knowledge of the specific contents thereof. This knowledge can be proven by direct or circumstantial evidence, or both. (b) If relevant to a prosecution for violating section 13‑3506, 13‑3506.01 or 13‑3507, the age of the minor, provided that an honest mistake shall constitute an excuse from liability under this chapter if the defendant made a reasonable bona fide attempt to ascertain the true age of such minor. 4. "Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state. 5. "Sadomasochistic abuse" means flagellation or torture by or upon a person clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed, for the purpose or in the context of sexual gratification or abuse. 6. "Sexual activity" means: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, sadomasochistic abuse and lewd exhibition of the genitals. 7. "Sexual conduct" means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person is a female, breast. 8. "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal. 9. "Ultimate sexual acts" means sexual intercourse, vaginal or anal, fellatio, cunnilingus, bestiality or sodomy. A sexual act is simulated when it depicts explicit sexual activity which gives the appearance of consummation of ultimate sexual acts. END_STATUTE Sec. 2. Section 15-102, Arizona Revised Statutes, is amended to read: START_STATUTE15-102. Parental involvement in the school; definitions A. The school district governing board, in consultation with parents, teachers and administrators, shall develop and adopt a policy to promote the involvement of parents and guardians of children enrolled in the schools within the school district, including: 1. A plan for parent participation in the schools that is designed to improve parent and teacher cooperation in such areas as homework, attendance and discipline. The plan shall provide for the administration of a parent‑teacher satisfaction survey. 2. Procedures by which parents may learn about the course of study for their children and review learning materials, including which are defined to include the source instructional materials used by a teacher and any materials used by pupils and the sources of those materials and any supplemental educational materials. 3. Procedures by which parents who object to any learning material or activity on the basis that it is harmful may withdraw their children from the activity or from the class or program in which the material is used. Objection to a learning material or activity on the basis that it is harmful includes objection to a material or activity because it questions beliefs or practices in sex, morality or religion. 4. If a school district offers any sex education curricula pursuant to section 15‑711 or 15‑716 or pursuant to any rules adopted by the state board of education, procedures to prohibit a the school district from providing sex education instruction to a pupil unless the pupil's parent provides written permission for the child to participate in the sex education curricula. In seeking written permission from a pupil's parent pursuant to this paragraph, the school district shall do all of the following: (a) Provide the pupil's parent with a written permission form that includes an outline of the topics that are included in the sex education curricula. (b) Notify the pupil's parent of the right to review the learning materials pursuant to paragraph 2 of this subsection. (c) Notify the pupil's parent of the availability of all of the learning materials for review at the school and school district office during regular business hours. 5. Procedures by which parents will be notified in advance of and given the opportunity to withdraw their children from any instruction or presentations regarding sex, sexuality or sexual activity in courses other than formal sex education curricula. 6. Procedures by which parents may learn about the nature and purpose of clubs and activities that are part of the school curriculum, extracurricular clubs and activities that have been approved by the school. 7. Procedures by which parents may learn about parental rights and responsibilities under the laws of this state, including the following: (a) The right to opt in to a sex education curriculum if one is provided by the school district. (b) Open enrollment rights pursuant to section 15‑816.01. (c) The right to opt out of assignments pursuant to this section. (d) The right to opt out of immunizations pursuant to section 15‑873. (e) The promotion requirements prescribed in section 15‑701. (f) The minimum course of study and competency requirements for graduation from high school prescribed in section 15‑701.01. (g) The right to opt out of instruction on the acquired immune deficiency syndrome pursuant to section 15‑716. (h) (g) The right to review test results pursuant to section 15‑743. (i) (h) The right to participate in gifted programs pursuant to section 15‑779.01. (j) (i) The right to access instructional materials pursuant to section 15‑730. (k) (j) The right to receive a school report card pursuant to section 15‑746. (l) (k) The attendance requirements prescribed in sections 15‑802, 15‑803 and 15‑821. (m) (l) The right to public review of courses of study and textbooks pursuant to sections 15‑721 and 15‑722. (n) (m) The right to be excused from school attendance for religious purposes pursuant to section 15‑806. (o) (n) Policies related to parental involvement pursuant to this section. (p) (o) The right to seek membership on school councils pursuant to section 15‑351. (q) (p) Information about the student accountability information system as prescribed in section 15‑1041. (r) (q) The right to access the failing schools tutoring fund pursuant to section 15-241. B. Each charter school governing body, in consultation with parents, teachers and administrators, shall develop and adopt both of the following: 1. If the charter school offers any sex education curricula pursuant to section 15‑711 or 15‑716 or pursuant to any rules adopted by the state board of education, procedures to prohibit the charter school from providing sex education instruction to a pupil unless the pupil's parent provides written permission for the child to participate in the sex education curricula. In seeking written permission from a pupil's parent pursuant to this paragraph, the charter school shall do all of the following: (a) Provide the pupil's parent with a written permission form that includes an outline of all the topics that are included in the sex education curricula. (b) Notify the pupil's parent of the right to review all of the learning materials pursuant to procedures developed and adopted by the charter school governing body. (c) Notify the pupil's parent of the availability of the learning materials for review at the charter school office during regular business hours. 2. Procedures by which parents will be notified in advance of and given the opportunity to withdraw their children from any instruction or presentations regarding sex, sexuality or sexual activity in courses other than formal sex education curricula. B. C. The policy adopted by the school district governing board or charter school governing body pursuant to this section may also include the following components: 1. A plan by which parents will be made aware of the district's or charter school's parental involvement policy and this section, including: (a) Rights under the family educational rights and privacy act of 1974 (20 United States Code section 1232g) relating to access to children's official records. (b) The parent's right to inspect the school district or charter school policies and curriculum. 2. Efforts to encourage the development of parenting skills. 3. The communication Communicating to parents of techniques that are designed to assist the child's learning experience in the home. 4. Efforts to encourage access to community and support services for children and families. 5. The promotion of Promoting communication between the school and parents concerning school programs and the academic progress of the parents' children. 6. Identifying opportunities for parents to participate in and support classroom instruction at the school. 7. Efforts to support, with appropriate training, parents as shared decision-makers and to encourage membership on school councils. 8. The recognition of Recognizing the diversity of parents and the development of developing guidelines that promote widespread parental participation and involvement in the school at various levels. 9. The development of Developing preparation programs and specialized courses for certificated employees and administrators that promote parental involvement. 10. The development of Developing strategies and programmatic structures at schools to encourage and enable parents to participate actively in their children's education. C. D. The school district governing board or charter school governing body may adopt a policy to provide to parents the information required by this section in an electronic form. D. E. A parent shall submit a written request for information pursuant to this section during regular business hours to either the school principal at the school site or the superintendent of the school district at the office of the school district. Within ten days after receiving the request for information, the school principal or the superintendent of the school district shall either deliver the requested information to the parent or submit to the parent a written explanation of the reasons for the denial of denying the requested information. If the request for information is denied or the parent does not receive the requested information within fifteen days after submitting the request for information, the parent may submit a written request for the information to the school district governing board or charter school governing body, which shall formally consider the request at the next scheduled public meeting of the school district governing board or charter school governing body if the request can be properly noticed on the agenda. If the request cannot be properly noticed on the agenda, the school district governing board or charter school governing body shall formally consider the request at the next subsequent public meeting of the school district governing board or charter school governing body. E. F. For the purposes of this section: , 1. "Parent" means the natural or adoptive parent or legal guardian of a minor child. 2. "Sex education" means any course of study or instruction on human sexuality, sexual activity, sexual conduct, ultimate sexual acts as defined in section 13-3501, intimate relationships, sexually transmitted infections, contraception, pregnancy, or acquired immune deficiency syndrome and the human immunodeficiency virus. END_STATUTE Sec. 3. Section 15-115, Arizona Revised Statutes, is amended to read: START_STATUTE15-115. Preference for childbirth and adoption; allowable presentations A. In view of the state's strong interest in promoting childbirth and adoption over elective abortion, no a school district or charter school in this state may not endorse or provide financial or instructional program support to any program that does not present childbirth and adoption as preferred options to elective abortion. B. In view of the state's strong interest in promoting childbirth and adoption over elective abortion, no a school district or charter school in this state may not allow any presentation, including any presentation during instructional time, or furnish any materials, including materials that are furnished to pupils as part of any instruction, that does do not give preference, encouragement and support to childbirth and adoption as preferred options to elective abortion. C. Any program, presentation or materials provided pursuant to sections 15‑711 and 15‑716 must comply with this section. END_STATUTE Sec. 4. Section 15-711, Arizona Revised Statutes, is amended to read: START_STATUTE15-711. Sex education; course of study; definitions A. All Each school districts district or charter school with existing sex education curricula shall include instruction on the laws relating to sexual conduct with a minor for pupils in grades seven, eight, nine, ten, eleven and twelve. B. Each school district or charter school may develop its own sex education course of study or adopt an existing sex education course of study to meet the requirements of this section and section 15‑716. Any revision or update to a sex education course of study shall meet the requirements of this section and section 15-716. C. Before a school district or charter school offers sex education instruction, the school district governing board or charter school governing body shall review and approve the sex education course of study that is developed, adopted, revised or updated pursuant to this section and section 15‑716. The school district governing board or charter school governing body may not approve a course of study unless it complies with this section and section 15-716. D. Before approving any sex education course of study developed, adopted, revised or updated pursuant to this section and section 15-716, the school district governing board or charter school governing body shall do both of the following: 1. Require that all meetings of committees that have been authorized for the purposes of reviewing and selecting the sex education course of study be publicly noticed at least two weeks before OCCURRING and be open to the public pursuant to title 38, chapter 3, article 3.1. 2. Make any proposed sex education course of study available and accessible for review and public comment for at least sixty days and conduct at least two public hearings within the sixty days before the school district governing board or charter school governing body decides whether to approve any course of study. Public comment may include written comments, oral comments and comments submitted through email. E. A school district or charter school is not required to provide sex education instruction to pupils. If a school district or charter school decides to provide sex education instruction after school hours, this section and sections 15-102 and 15-716 apply. F. For the purposes of this section: 1. "Course of study" means any framework or curricula, including textbooks, teaching aids, instructional materials and supplemental instructional materials, whether in printed or digital format. 2. "Sex education" means any course of study or instruction on human sexuality, sexual activity, sexual conduct, ultimate sexual acts as defined in section 13-3501, intimate relationships, sexually transmitted infections, contraception, pregnancy, or acquired immune deficiency syndrome and the human immunodeficiency virus. END_STATUTE Sec. 5. Section 15-716, Arizona Revised Statutes, is amended to read: START_STATUTE15-716. Instruction on sex education, HIV and AIDS; minimum grade; parental permission; enforcement; definitions A. Each common, high and unified school district and charter school may provide elective instruction to pupils in kindergarten programs and grades one seven through twelve on sex education, including on acquired immune deficiency syndrome and the human immunodeficiency virus. A school district or charter school may not provide sex education instruction to a pupil before the seventh grade. This subsection does not prohibit a school district or charter school from providing health instruction, including instruction on personal safety and instruction in Arizona health standards, to pupils in kindergarten programs and grades one through six. B. Each school district and charter school may develop its own course of study or adopt an existing course of study for each grade. At a minimum, any sex education instruction shall: 1. Be appropriate to the grade level in which it is offered. 2. Be medically accurate. 3. Promote abstinence or, for sexually active pupils, the return to abstinence as the primary message in all sex education instruction and as the expected standard of conduct for minors. For the purposes of this paragraph, "abstinence" means abstaining from all sexual conduct as defined in section 13‑3501 and ultimate sexual acts as defined in section 13‑3501. 4. Discourage drug abuse. 5. Dispel myths regarding transmission of the human immunodeficiency virus. 6. Emphasize sexual risk avoidance rather than sexual risk reduction. C. Any sex education instruction may not: 1. Violate section 13‑3506. 2. Normalize sexual conduct between minors or sexual conduct with a minor in violation of section 13‑1405. 3. Suggest that any type of sexual conduct between minors is safe or without risk. C. D. At the request of a school district or charter school, the department of health services or the department of education shall review instruction materials to determine their medical accuracy. D. At the request of a school district, the department of education shall provide the following assistance: 1. A suggested course of study. 2. Teacher training. 3. A list of available films and other teaching aids. E. At the request of a parent, a pupil shall be excused from instruction on the acquired immune deficiency syndrome and the human immunodeficiency virus as provided in subsection A of this section. The school district shall provide a description of the course curriculum to all parents and notify all parents of their ability to withdraw their child from the instruction. E. Each school district and charter school that provides instruction on sex education, including on acquired immune deficiency syndrome and the human immunodeficiency virus, shall notify all parents of the course of study in accordance with section 15‑102, subsection A, paragraph 4 or subsection B, paragraph 3 and provide course materials for review at an accessible location at least two weeks before the beginning of the sex education instruction. A pupil shall be excused from instruction on sex education, including on acquired immune deficiency syndrome and the human immunodeficiency virus, unless the pupil's parent provides written permission for the parent's pupil to participate. F. The parental notification required under subsection E of this section must contain the following: 1. Information on any business, organization, guest speaker, outside entity, contractor or other person that may provide or assist with sex education materials or instruction in the school. 2. Information on any sex education material or instruction that refers pupils or encourages pupils to visit or research available clinics, businesses or other outside resources that are subject to the requirements of title 36, chapter 4, article 10. 3. An acknowledgement that the school district or charter school has reviewed the sex education materials and instruction and determined that furnishing those materials to pupils does not violate section 13‑3506. G. Instruction on sex education shall not occur outside of the sex education instruction that is developed or adopted pursuant to this section and section 15‑711. H. A pupil or a pupil's parent may not initiate legal action to enforce this section unless the pupil or the pupil's parent complies with the following: 1. The pupil or the pupil's parent submits a complaint in writing with the specific facts of the alleged violation to the principal of the school. The principal shall investigate the complaint and respond in writing, including a description of any action taken to resolve the complaint, within fifteen days after receiving the written complaint. 2. If the action taken by the principal of the school does not resolve the complaint of the pupil or the pupil's parent, the pupil or the pupil's parent submits a complaint in writing with the specific facts of the alleged violation to the superintendent or designated administrator. The superintendent or designated administrator shall investigate the complaint and respond in writing, including a description of any action taken to resolve the complaint, within twenty-five days after receiving the written complaint. I. If the action taken by the superintendent or designated administrator pursuant to subsection H of this section does not resolve the complaint of the pupil or the pupil's parent, the pupil or the pupil's parent may pursue legal action to enforce this section. J. For the purposes of this section: 1. "Course of study" has the same meaning prescribed in section 15‑711. 2. "Health instruction" means any instruction, including a discussion of essential health principles and skills, of a nonsexual nature that is necessary to develop and maintain healthy behaviors and lifestyles, as well as age-appropriate instruction on physical, biological and hormonal changes during the stages of human maturation. 3. "Personal safety" means any age-appropriate instruction that promotes a child's self-protection, including how to avoid potentially dangerous or risky encounters, sexual contact and unwanted physical contact. 4. "Sex education" means any course of study or instruction on human sexuality, sexual activity, sexual conduct, ultimate sexual acts as defined in section 13-3501, intimate relationships, sexually transmitted infections, contraception, pregnancy, or acquired immune deficiency syndrome and the human immunodeficiency virus. END_STATUTE Sec. 6. Existing sex education instruction; review; delayed repeal A. On or before December 15, 2020, each school district or charter school that offers any sex education instruction shall review its course of study and revise it to comply with sections 15-711 and 15-716, as amended by this act. B. This section is repealed from and after December 31, 2020.