Text of UT HB 464 (2023)

H.B. 464 LEGISLATIVE GENERAL COUNSEL 6 Approved for Filing: M. Curtis 6 6 02-14-23 1:48 PM 6 H.B. 464 1 SCHOOL MATERIALS AMENDMENTS 2 2023 GENERAL SESSION 3 STATE OF UTAH 4 Chief Sponsor: Ken Ivory 5 Senate Sponsor: ____________ 6 7 LONG TITLE 8 General Description: 9 This bill amends provisions regarding student access to pornographic or indecent 10 materials within the public education system. 11 Highlighted Provisions: 12 This bill: 13 < requires local education agencies (LEAs) to: 14 C engage in certain review processes when a parent communicates an allegation 15 that an instructional material is prohibited by state law; and 16 C publicly vote on and explain a determination to reinstate or preserve student 17 access to challenged instructional material; 18 < establishes the precedential effect of LEA and state board determinations; 19 < requires the State Board of Education (state board) to: 20 C review LEA determinations regarding certain sensitive material; and 21 C make rules, including to establish an age-appropriateness rating system for 22 instructional materials; 23 < establishes a private right of action for judicial review of LEA and state board 24 determinations regarding challenged instructional material; 25 < amends a state board reporting requirement; and 26 < makes technical and conforming changes. 27 Money Appropriated in this Bill: *HB0464* H.B. 464 02-14-23 1:48 PM - 2 - 28 None 29 Other Special Clauses: 30 This bill provides a special effective date. 31 Utah Code Sections Affected: 32 AMENDS: 33 53G-10-103, as enacted by Laws of Utah 2022, Chapter 377 34 35 Be it enacted by the Legislature of the state of Utah: 36 Section 1. Section 53G-10-103 is amended to read: 37 53G-10-103. Sensitive instructional materials. 38 (1) As used in this section: 39 (a) (i) "Instructional material" means a material, regardless of format, used: 40 (A) as or in place of textbooks to deliver curriculum within the state curriculum 41 framework for courses of study by students; or 42 (B) to support a student's learning in [the] any school setting. 43 (ii) "Instructional material" includes reading materials, handouts, videos, digital 44 materials, websites, online applications, and live presentations. 45 (b) "LEA governing board" means: 46 (i) for a school district, the local school board; 47 (ii) for a charter school, the charter school governing board; or 48 (iii) for the Utah Schools for the Deaf and the Blind, the state board. 49 (c) "Material" means the same as that term is defined in Section 76-10-1201. 50 (d) "Minor" means any person less than 18 years old. 51 (e) "Public school" means: 52 (i) a district school; 53 (ii) a charter school; or 54 (iii) the Utah Schools for the Deaf and the Blind. 55 (f) (i) "School setting" means, for a public school: 56 (A) in a classroom; 57 (B) in a school library; or 58 (C) on school property. 02-14-23 1:48 PM H.B. 464 - 3 - 59 (ii) "School setting" includes the following activities that an organization or individual 60 or organization outside of a public school conducts, if a public school or an LEA sponsors or 61 requires the activity: 62 (A) an assembly; 63 (B) a guest lecture; 64 (C) a live presentation; or 65 (D) an event. 66 (g) (i) "Sensitive material" means an instructional material that is pornographic or 67 indecent material as that term is defined in Section 76-10-1235, and is therefore pervasively 68 vulgar. 69 (ii) "Sensitive material" does not include an instructional material: 70 (A) that an LEA selects under Section 53G-10-402; 71 (B) for a concurrent enrollment course for which the provider of the material and the 72 LEA have a reasonable belief that the material does not contain sensitive material and for 73 which a parent receives notice of the material and gives the parent's consent; 74 [(B)] (C) for medical courses; 75 [(C)] (D) for family and consumer science courses; or 76 [(D)] (E) for another course the state board exempts in state board rule. 77 (2) (a) Sensitive materials are prohibited in the school setting. 78 (b) A public school may not: 79 (i) adopt, use, distribute, provide a student access to, or maintain in the school setting, 80 sensitive materials; or 81 (ii) permit a speaker or presenter in the school setting to display or distribute sensitive 82 materials. 83 (3) An LEA shall: 84 (a) upon receipt of a notice from a parent of a school-age child that an instructional 85 material constitutes sensitive material under this section: 86 (i) immediately remove the material from the library, classroom, or other location 87 where students may access the material until the LEA completes the LEA's review; 88 (ii) review the allegations and the relevant material; 89 (iii) (A) if the LEA determines that the material does not constitute sensitive material H.B. 464 02-14-23 1:48 PM - 4 - 90 and seeks to preserve student access to the material, make a written and publicly accessible 91 determination, in accordance with a public vote of the local governing board, regarding the 92 LEA's determination, including the LEA's reasoning and an explanation of why the material is 93 age appropriate and has serious scientific, artistic, or literary value; and 94 (B) if the LEA determines that the material constitutes sensitive material using the 95 standards described in Section 76-10-1227 for a description or depiction of illicit sex or 96 immorality, refer the material to the state board for review under Subsection (4); and 97 (iv) notify the individual who challenged the material regarding the outcome of the 98 review, including any referral to the state board in accordance with this section; 99 (b) complete the review and make the determination described in Subsection (3)(a) no 100 later than 120 days after the day on which the LEA receives the notice triggering the LEA's 101 review; and 102 (c) include parents who are reflective of the members of the school's community when 103 [determining if an instructional material is sensitive material] making the determinations 104 described in Subsection (3)(a). 105 (4) Upon receipt of an LEA's determination that an instructional material constitutes 106 sensitive material under this section using the standards described in Section 76-10-1227 for a 107 description or depiction of illicit sex or immorality, the state board shall: 108 (a) review the relevant material; and 109 (b) (i) if the state board ratifies the LEA's determination, notify all LEAs to remove the 110 sensitive material from student access; or 111 (ii) if the state board does not ratify the LEA's determination, make a written and 112 publicly accessible determination, in accordance with a public vote of the state board, as to 113 why the material does not constitute sensitive material under this section, including the state 114 board's reasoning. 115 (5) (a) Notwithstanding Subsection (3), an LEA may choose to not engage in a review 116 of an instructional material against which the same individual has triggered three reviews under 117 Subsection (3) during the present or preceding school year for material that the LEA 118 determined, through the review process, to not constitute sensitive material. 119 (b) (i) A determination by a local governing board described in Subsection (3) governs 120 the availability of the given instructional material in each library, classroom, or other location 02-14-23 1:48 PM H.B. 464 - 5 - 121 where students may access the material within the public education system throughout the 122 LEA. 123 (ii) A determination by the state board described in Subsection (4) governs the 124 availability of the given instructional material in each library, classroom, or other location 125 where students may access the material within the public education system throughout the 126 state. 127 (6) (a) An LEA shall ensure that before a student within the LEA has any library, 128 classroom, or other access to any instructional material that meets the state board's serious 129 concern rating standard described in Subsection (7)(b)(i), the LEA: 130 (i) provides written notice to the parent of each student who may have access to the 131 material regarding the student's potential access to the material; and 132 (ii) has express written consent from the parent of any student who accesses the 133 material. 134 [(4)] (7) The state board shall: 135 (a) in consultation with the Office of the Attorney General, provide guidance and 136 training to support public schools in identifying instructional materials that meet the definition 137 of sensitive materials under this section; [and] 138 (b) before the 2023-2024 school year, make rules in accordance with Title 63G, 139 Chapter 3, Utah Administrative Rulemaking Act, to: 140 (i) establish a rating system for age-appropriate instructional materials that: 141 (A) includes at least language, criminal activity, self-harm, drug use, suicidal ideation, 142 and sexual content, including sexuality and gender identity; 143 (B) identifies the rating and age at which the characteristics described in this 144 Subsection (7)(b)(i) are of serious concern to the well-being of students; and 145 (ii) prevent the acquisition of sensitive material by LEAs and schools; and 146 [(b)] (c) report to the Education Interim Committee and the Government Operations 147 Interim Committee, at or before the November [2022] interim meeting each year, on 148 implementation and compliance with this section, including: 149 (i) any policy the state board or an LEA adopts to implement or comply with this 150 section; 151 (ii) any rule the state board makes to implement or comply with this section; and H.B. 464 02-14-23 1:48 PM - 6 - 152 (iii) any complaints an LEA or the state board receives regarding a violation of this 153 section, including: 154 (A) action taken in response to a complaint described in this Subsection (4)(b)(iii); and 155 (B) if an LEA retains an instructional material for which the LEA or the state board 156 receives a complaint, the LEA's rationale for retaining the instructional material. 157 (8) (a) No less than 30 days after providing the relevant LEA or the state board a notice 158 of claim and an opportunity to cure, a parent who triggers a review under Subsection (3) or (4) 159 may bring an action in a court of competent jurisdiction against the relevant LEA or the state 160 board to seek judicial review of a determination to reinstate or preserve student access to an 161 instructional material that the parent alleges to constitute sensitive material under this section. 162 (b) If a parent prevails in an action described in this Subsection (8): 163 (i) the parent is entitled to an award in an amount equal to the greater of actual 164 damages or $500 per violation and an award of reasonable attorney fees and court costs; and 165 (ii) the defendant shall pay a fine of $500 per violation to be deposited into the Crime 166 Victim Reparations Fund created in Section 51-9-404. 167 (c) If a court determines that a parent's action before the court under this Subsection (8) 168 is meritless or abusive, the defendant shall pay a fine of $500 to be deposited into the Crime 169 Victim Reparations Fund created in Section 51-9-404. 170 Section 2. Effective date. 171 This bill takes effect on July 1, 2023.