Text of MT HB 837 (2023)

**** 68th Legislature 2023 HB 837.1 - 1 - Authorized Print Version – HB 837 HOUSE BILL NO. 837 1 INTRODUCED BY J. HINKLE 2 3 A BILL FOR AN ACT ENTITLED: “AN ACT ESTABLISHING THE TRANSPARENCY IN EDUCATION ACT; 4 PROVIDING A PURPOSE; PROVIDING DEFINITIONS; REQUIRING SCHOOL DISTRICTS TO MAKE 5 INSTRUCTIONAL MATERIALS AVAILABLE FOR REVIEW AND TO NOTIFY PARENTS OF THEIR RIGHT TO 6 BE INVOLVED AND MAKE DECISIONS ABOUT THEIR CHILD'S EDUCATION; REQUIRING SCHOOL 7 DISTRICTS TO PROVIDE PARENTS ACCESS TO THEIR CHILD'S EDUCATIONAL RECORDS; 8 PROHIBITING SCHOOL EMPLOYEES FROM WITHHOLDING INFORMATION ABOUT A CHILD FROM THE 9 CHILD'S PARENTS; PROVIDING REMEDIES FOR VIOLATIONS; REQUIRING A PARENTAL OPT-IN FOR 10 INSTRUCTION ON CERTAIN TOPICS; PROVIDING AN APPROPRIATION; AMENDING SECTION 20-7-120, 11 MCA; AND PROVIDING EFFECTIVE DATES.” 12 13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA: 14 15 NEW SECTION. Section 1. Short title. [Sections 1 through 6] may be cited as the "Transparency in 16 Education Act". 17 18 NEW SECTION. Section 2. Purpose. The purpose of [sections 1 through 6] is to ensure public 19 transparency in the instruction, training, and learning materials offered by a public school and to give parents 20 and students reasonable access to these materials. 21 22 NEW SECTION. Section 3. Definitions. For the purposes of this part, the following definitions apply: 23 (1) (a) "Activities" means assemblies, guest lectures, or other educational events facilitated by a 24 school's faculty or staff, including those conducted by outside individuals or organizations. 25 (b) The term does not include student presentations. 26 (2) "Critical theory instruction" means teaching or otherwise providing information on any of the 27 following concepts: 28 **** 68th Legislature 2023 HB 837.1 - 2 - Authorized Print Version – HB 837 (a) the United States or the state of Montana is fundamentally, inherently, or irredeemably racist, 1 sexist, oppressive, or discriminatory; 2 (b) an individual, by virtue of sex, race, ethnicity, religion, color, or national origin, is inherently 3 racist, sexist, oppressive, or discriminatory whether consciously or unconsciously; 4 (c) an individual, by virtue of sex, race, ethnicity, religion, color, or national origin, should be 5 blamed or held responsible for actions committed in the past by other members of the individual's sex, race, 6 ethnicity, religion, color, or national origin; 7 (d) an individual's moral character is necessarily determined, in whole or in part, by the individual's 8 sex, race, ethnicity, religion, color, or national origin; 9 (e) an individual should feel guilt, blame, discomfort, anguish, or any other form of psychological 10 distress on account of the individual's sex, race, ethnicity, religion, color, or national origin; or 11 (f) any individual, by virtue of sex, race, ethnicity, religion, color, or national origin, is marginalized 12 as perpetually victimized or unable to advance in society due to being marginalized, victimized, or oppressed by 13 others. 14 (3) "Human sexuality instruction" means teaching or otherwise providing information: 15 (a) in which the primary focus of the instruction is about human sexuality, including intimate 16 relationships, human sexual anatomy, sexual reproduction, sexually transmitted infections, sexual acts, 17 abstinence, contraception, or reproductive rights and responsibilities; or 18 (b) that includes in any manner the topics of sexual orientation, gender identity, gender 19 expression, or gender roles or stereotypes. 20 (4) "Learning materials" includes all textbooks, reading materials, videos, presentations, digital 21 materials, websites, online applications, digital applications for a phone, laptop, or tablet, questionnaires, 22 surveys, or other written or electronic materials that have been or will be assigned, distributed, or otherwise 23 presented physically or virtually to students as part of a class or course. 24 (5) "Original materials" means learning materials owned or licensed by the school district, school, 25 faculty, or staff that are used for student instruction. 26 (6) "School" means an institution for the teaching of children that is established and maintained 27 under the laws of the state at public expense as described in 20-6-501. 28 **** 68th Legislature 2023 HB 837.1 - 3 - Authorized Print Version – HB 837 (7) "Teacher training materials" means any presentations, videos, professional development 1 classes, or other educational or training activities, including any written or electronic materials used or 2 distributed in the activities, that a teacher is required to attend, view, or participate in by a school district. 3 (8) "Used for student instruction" means assigned, distributed, or otherwise presented to students 4 in any course for which students receive academic credit, in any educational capacity in which participation of 5 the student body is required by the school, or in which a majority of students in a given grade level participate. 6 This term applies to any materials from among which students are required to select one or more of the 7 materials, if the available selection is restricted to specific titles. 8 9 NEW SECTION. Section 4. Curriculum transparency. (1) The board of trustees of a school district 10 shall ensure that the following information is displayed and easily accessible on the school district website, or if 11 a district does not maintain a website, made available for public inspection pursuant to subsection (2): 12 (a) all teacher training materials or activities used for staff and faculty training; 13 (b) all learning materials or activities used for student instruction, including: 14 (i) the title, author, organization, and any website associated with each material and activity; 15 (ii) a link to the learning material or, if the learning material is not freely and publicly available on 16 the internet, a brief description of the learning material and information on how to request to review a copy of 17 the learning material; and 18 (iii) if the learning material was created for nonpublic use, the identity of the teacher, staff member, 19 school official, or outside presenter who created it. This identification may be indicated by a personal title and 20 last initial if referring to a teacher, staff member, or school official. 21 (c) any procedure for the documentation, review, or approval of the learning material, teacher 22 training material, or activities used for student instruction or staff and faculty training at the school, including by 23 the principal, curriculum administrators, or other teachers. 24 (2) The board of trustees shall make all learning materials, including original materials, and teacher 25 training materials available for public inspection during regular hours of operation of the school or by special 26 appointment at the school building in which the learning materials are used for student instruction. The 27 materials must be available for inspection no later than 7 days after they are requested, and the public must be 28 **** 68th Legislature 2023 HB 837.1 - 4 - Authorized Print Version – HB 837 permitted to copy, scan, duplicate, or photograph portions of original materials within the limits of "fair use" 1 under section 107 of the Copyright Act of 1976. 2 (3) The information required by subsection (1) must: 3 (a) be displayed online or made available prior to the start of each semester. If any learning 4 materials are added to a class or course after the start of each semester, the school district shall, within 5 days 5 after the materials are first used for student instruction: 6 (i) display the learning materials online or make them available as required by subsection (1); and 7 (ii) send a notice to the parents of all students in the class informing them of the new learning 8 materials and notifying them that the materials are available for review online or in person as provided in this 9 section; 10 (b) be organized by school, grade, teacher, and subject, and remain displayed on the school 11 website or be made available for at least 2 years; 12 (c) state the date of the latest modification or update to the information; and 13 (d) for a district that maintains a website, be created and displayed in searchable or sortable 14 electronic formats. 15 (4) Nothing in this section may be construed to require the digital reproduction or posting of copies 16 of the learning materials or teaching training materials when doing so would infringe on copyrighted material. In 17 these cases, the school district shall: 18 (a) offer a link to a publicly available website describing and offering access to the learning 19 materials, if possible; and 20 (b) provide the learning materials and teacher training materials for public inspection as provided in 21 subsection (2). 22 (5) The board of trustees of a school district shall develop a policy for parental educational 23 involvement and shall, at the beginning of each school year, send a copy of the policy to the parents of each 24 child enrolled in the school district and post the policy on a conspicuous location on the school's website. The 25 policy must include the following rights for parents: 26 (a) parents have the right to review any learning materials and teacher training materials online or 27 at the school office during regular hours of operation or after regular hours by special appointment; 28 **** 68th Legislature 2023 HB 837.1 - 5 - Authorized Print Version – HB 837 (b) parents have the right to copy, scan, duplicate, or photograph portions of any learning 1 materials and teacher training materials within the limits of "fair use" under section 107 of the Copyright Act of 2 1976; 3 (c) parents have the right to meet with the teacher of the class or course, the principal, or another 4 representative from the school district on request and within a reasonable time to discuss the learning materials 5 and teacher training materials; 6 (d) pursuant to 20-7-120, a statement: 7 (i) informing parents that they shall give written permission for their child to attend a course of 8 instruction, a class period, an assembly, an organized school function, or instruction of any type that involves 9 human sexuality instruction or critical theory instruction; and 10 (ii) providing a link to the location on the school's website where a parent can obtain the 11 permission form along with instructions on how to submit the form to the school; and 12 (e) a statement informing parents that they may decline their child's participation in any survey to 13 which the parents, in the parents' sole discretion, object. 14 (6) An attorney acting on behalf of a school district may request a legal opinion of the county or 15 district attorney or the attorney general as to whether a particular piece of learning material or teacher training 16 material is subject to the requirements of this section. 17 18 NEW SECTION. Section 5. Access to child's educational records. (1) The board of trustees of a 19 school district shall ensure that a parent may inspect and review all written and electronic records concerning 20 the parents' child that are controlled by or in the possession of a school district, district employee, or any person 21 or organization hired, contracted, or authorized by the school district to provide services to students. The board 22 may fulfill this requirement through either an online application or a portal in which a parent can access the 23 child's records, or by creating a procedure for a parent to inspect, review, copy, scan, duplicate, or photograph 24 the child's records within 5 days of receiving a written request from the parent. 25 (2) For the purposes of this section, the term "records" includes: 26 (a) attendance records; 27 (b) test scores of school-administered tests and statewide assessments; 28 **** 68th Legislature 2023 HB 837.1 - 6 - Authorized Print Version – HB 837 (c) grades; 1 (d) extracurricular activity or club participation; 2 (e) the child's e-mail accounts; 3 (f) the child's online or virtual accounts or data; 4 (g) disciplinary records; 5 (h) counseling records; 6 (i) psychological records; 7 (j) applications for admission; 8 (k) health and immunization information, including any medical records maintained by a health 9 clinic or medical facility operated or controlled by the school district or located on district property; 10 (l) teacher and counselor evaluations; and 11 (m) reports of behavioral patterns. 12 (3) School employees may not withhold or conceal any information from, or facilitate, encourage, 13 or coerce a child to withhold or conceal any information from, the child's parents, including but not limited to 14 information regarding the child's: 15 (a) educational records; 16 (b) curricular or extracurricular projects, assignments, or activities; and 17 (c) physical, emotional, or mental health. 18 19 NEW SECTION. Section 6. Remedies for violations. (1) An individual may submit a written 20 complaint detailing any violation of this part to the superintendent of the school district. The individual is entitled 21 to a meeting with the superintendent to discuss the complaint. The superintendent shall investigate the 22 complaint and respond to the individual in writing within 14 days after receiving the complaint describing the 23 actions of the superintendent to remedy the complaint. 24 (2) An individual may appeal the actions of the superintendent to the board of trustees of the 25 school district by submitting a written complaint detailing the violation of this part and a description of why the 26 superintendent's response failed to remedy the complaint. The board of trustees shall appoint a committee to 27 investigate the complaint. The committee shall meet with the individual to discuss the complaint. Within 30 days 28 **** 68th Legislature 2023 HB 837.1 - 7 - Authorized Print Version – HB 837 of receiving the complaint, the committee shall submit a recommended response and proposed steps to 1 remedy the complaint to the full board for action by the board at the next meeting. 2 (3) If the board's action does not remedy a complaint, an individual may: 3 (a) file suit and assert a violation of this part as a claim against the school district; or 4 (b) file a complaint with the superintendent of public instruction of the violation as gross neglect of 5 duty under 20-4-110. 6 (4) Nothing in this section precludes an individual from filing a suit asserting a violation of this part 7 or any other claim otherwise allowed by law and nothing in this section requires exhaustion of the other 8 remedies under this section prior to filing a suit. 9 (5) The attorney general, state superintendent of public instruction, or district or county attorney for 10 the district or county in which an alleged violation of this part occurs may file suit and assert a violation of this 11 part as a claim against the school district. 12 (6) An individual that successfully asserts a claim under this section may recover: 13 (a) declaratory relief; 14 (b) injunctive relief to prevent or remedy a violation of this part or the effects of the violation; 15 (c) reasonable attorney fees and costs; and 16 (d) any other appropriate relief. 17 18 Section 7. Section 20-7-120, MCA, is amended to read: 19 "20-7-120. Excused absences from curriculum requirements -- notice -- prohibited activities. 20 (1) A parent, guardian, or other person who is responsible for the care of a child may refuse to allow the child to 21 attend or withdraw the child from a course of instruction, a class period, an assembly, an organized school 22 function, or instruction provided by the district through its staff or guests invited at the request of the district 23 regarding human sexuality instruction. The withdrawal or refusal to attend is an excused absence pursuant to 24 20-5-103.A school may not allow a child to attend a course of instruction, a class period, an assembly, an 25 organized school function, or instruction of any type that involves human sexuality instruction or critical theory 26 instruction unless that child's parent or guardian agrees in writing to allow the child to attend the instruction. 27 Pursuant to 20-5-103, a child is excused from participating in the instruction unless the child fails to attend after 28 **** 68th Legislature 2023 HB 837.1 - 8 - Authorized Print Version – HB 837 the parent or guardian has agreed in writing to allow the child's attendance. 1 (2) Any school implementing or maintaining a curriculum, providing materials, or holding an event 2 or assembly at which the district provides human sexuality instruction or critical theory instruction, whether 3 introduced by school educators, administrators, or officials or by guests invited at the request of the school, 4 shall adopt a policy ensuring parental or guardian notification no not less than 48 hours or more than 10 days 5 prior to holding an event or assembly or introducing materials for instructional use. 6 (3) A school district shall annually notify the parent or guardian of each student scheduled to be 7 enrolled in human sexuality instruction or a course that includes critical theory instruction in the district or school 8 in advance of the instruction of: 9 (a) the basic content of the district's or school's human sexuality instruction or critical theory 10 instruction intended to be taught to the student; and 11 (b) the parent's or guardian's right to withdraw the student from the district's or school's human 12 sexuality instruction. 13 (4) A school district shall make all curriculum materials used in the district's or school's human 14 sexuality instruction or critical theory instruction available for public inspection and copying for noncommercial 15 use prior to the use of the materials in actual instruction. 16 (5) A school district or its personnel or agents may not permit a person, entity, or any affiliate or 17 agent of the person or entity to offer, sponsor, or furnish in any manner any course materials or instruction 18 relating to human sexuality or sexually transmitted diseases to its students or personnel if the person, entity, or 19 any affiliate or agent of the person or entity is a provider of abortion services. 20 (6) For purposes of this section, "human sexuality instruction" means teaching or otherwise 21 providing information about human sexuality, including intimate relationships, human sexual anatomy, sexual 22 reproduction, sexually transmitted infections, sexual acts, sexual orientation, gender identity, abstinence, 23 contraception, or reproductive rights and responsibilities." 24 25 NEW SECTION. Section 8. Appropriation. (1) There is appropriated $190,000 from the state 26 general fund to the office of public instruction for the biennium beginning July 1, 2023, for distribution to school 27 districts as described in subsection (2) for the purpose of supporting the implementation of [sections 1 through 28 **** 68th Legislature 2023 HB 837.1 - 9 - Authorized Print Version – HB 837 6]. 1 (2) The superintendent of public instruction shall distribute to school districts that apply for funds 2 an amount equal to $400 for each district plus $2 for each full-time equivalent quality educator included in the 3 district's fiscal year 2024 budget. A district receiving funds shall deposit the money in the district's 4 miscellaneous programs fund to be used for the implementation of [sections 1 through 6]. 5 6 NEW SECTION. Section 9. Transition. The legislature intends that school districts implement the 7 requirements of [sections 1 through 6] as quickly as feasible, with full implementation no later than the school 8 year beginning July 1, 2024. 9 10 NEW SECTION. Section 10. Codification instruction -- directions to code commissioner. (1) 11 [Sections 1 through 6] are intended to be codified as a new part of Title 20, chapter 7, and the provisions of 12 Title 20, chapter 7, apply to [sections 1 through 6]. 13 (2) Section 20-7-120 is intended to be renumbered and codified in the same new part as [sections 14 1 through 6]. 15 16 NEW SECTION. Section 11. Severability. If a part of [this act] is invalid, all valid parts that are 17 severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, 18 the part remains in effect in all valid applications that are severable from the invalid applications. 19 20 NEW SECTION. Section 12. Effective dates. (1) Except as provided in subsection (2), [this act] is 21 effective July 1, 2023. 22 (2) [Section 6] is effective July 1, 2024. 23 - END - 24