Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 29 Second Substitute (2024GS)

Sponsor

Rep. Ivory, K.

Final action

House/ filed 1/25/2024 (12:16:30 PM)

Outcome

Failed / filed without passage

Summary

What it does

• This bill: defines terms; requires the prioritization of protecting children from illicit pornography over other considerations in evaluating instructional material; specifies individuals who may trigger a formal sensitive material review; establishes certain required processes for the evaluation and review of sensitive material allegations, including distinct requirements for objective sensitive material and subjective sensitive material; requires certain actions statewide if a certain threshold of local education agencies determine that the instructional material constitutes objective sensitive material, subject to a vote of the state board to overturn the statewide action in certain circumstances; provides indemnification for claims arising from sensitive materials requirements; requires the Office of the Legislative Auditor General to audit school district compliance with sensitive materials requirements; and makes technical and conforming changes.

Every vote on this bill

Bill text

3
53G-10-103
SENSITIVE MATERIAL REVIEW AMENDMENTS
2024 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Ken Ivory
Senate Sponsor: Todd D. Weiler
Cosponsor:
Katy Hall
Thomas W. Peterson
Cheryl K. Acton
Colin W. Jack
Candice B. Pierucci
Carl R. Albrecht
Tim Jimenez
Judy Weeks Rohner
Stewart E. Barlow
Dan N. Johnson
Rex P. Shipp
Kera Birkeland
Michael L. Kohler
Keven J. Stratton
Bridger Bolinder
Trevor Lee
Mark A. Strong
Walt Brooks
Karianne Lisonbee
Jordan D. Teuscher
Jefferson S. Burton
Steven J. Lund
R. Neil Walter
Kay J. Christofferson
Phil Lyman
Raymond P. Ward
Tyler Clancy
A. Cory Maloy
Christine F. Watkins
Joseph Elison
Jefferson Moss
Stephen L. Whyte
Stephanie Gricius
Michael J. Petersen
Ryan D. Wilcox
LONG TITLE
General Description:
This bill amends provisions regarding the evaluation of instructional material to identify 
and remove pornographic or indecent material.
Highlighted Provisions:
This bill:
defines terms;
requires the prioritization of protecting children from illicit pornography over other 
considerations in evaluating instructional material;
specifies individuals who may trigger a formal sensitive material review;
establishes certain required processes for the evaluation and review of sensitive material 
allegations, including distinct requirements for objective sensitive material and subjective 
sensitive material;
requires certain actions statewide if a certain threshold of local education agencies 
determine that the instructional material constitutes objective sensitive material, subject to a 
vote of the state board to overturn the statewide action in certain circumstances;
provides indemnification for claims arising from sensitive materials requirements;
requires the Office of the Legislative Auditor General to audit school district compliance 
with sensitive materials requirements; and
makes technical and conforming changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a special effective date.
Utah Code Sections Affected:
AMENDS:
53G-10-103
, as enacted by Laws of Utah 2022, Chapter 377
Be it enacted by the Legislature of the state of Utah:
Section 1, Section 
53G-10-103
 is amended to read:
53G-10-103. Sensitive instructional materials.
(1)
As used in this section:
(a)
(i)
"Instructional material" means a material, regardless of format, used:
(A)
as or in place of textbooks to deliver curriculum within the state curriculum 
framework for courses of study by students; or
(B)
to support a student's learning in 
the
any
 school setting.
(ii)
"Instructional material" includes reading materials, handouts, videos, digital 
materials, websites, online applications, and live presentations.
(iii)
"Instructional material" does not mean exclusively library materials.
(b)
"LEA governing board" means:
(i)
for a school district, the local school board;
(ii)
for a charter school, the charter school governing board; or
(iii)
for the Utah Schools for the Deaf and the Blind, the state board.
(c)
"Material" means the same as that term is defined in Section 
76-10-1201
.
(d)
"Minor" means any person less than 18 years old.
(e)
"Objective sensitive material" means an instructional material that constitutes 
pornographic or indecent material, as that term is defined in Section 
76-10-1235
, 
under the non-discretionary standards described in Subsection 
76-10-1227
(1)(a)(i), 
(ii), or (iii).
(e)
(f)
"Public school" means:
(i)
a district school;
(ii)
a charter school; or
(iii)
the Utah Schools for the Deaf and the Blind.
(f)
(g)
(i)
"School setting" means, for a public school:
(A)
in a classroom;
(B)
in a school library; or
(C)
on school property.
(ii)
"School setting" includes the following activities that an organization or 
individual or organization outside of a public school conducts, if a public school 
or an LEA sponsors or requires the activity:
(A)
an assembly;
(B)
a guest lecture;
(C)
a live presentation; or
(D)
an event.
(g)
(h)
(i)
"Sensitive material" means an instructional material that 
is pornographic 
or indecent material as that term is defined in Section 
76-10-1235
constitutes 
objective sensitive material or subjective sensitive material
.
(ii)
"Sensitive material" does not include an instructional material:
(A)
that an LEA selects under Section 
53G-10-402
;
(B)
for a concurrent enrollment course that contains sensitive material and for 
which a parent receives notice from the course provider of the material before 
enrollment of the parent's child and gives the parent's consent by enrolling the 
parent's child;
(B)
(C)
for medical courses;
(C)
(D)
for family and consumer science courses; or
(D)
(E)
for another course the state board exempts in state board rule.
(iii)
"Subjective sensitive material" means an instructional material that constitutes 
pornographic or indecent material, as that term is defined in Section 
76-10-1235
, 
under the following factor-balancing standards:
(A)
material that is harmful to minors under Section 
76-10-1201
;
(B)
material that is pornographic under Section 
76-10-1203
; or
(C)
material that includes certain fondling or other erotic touching under 
Subsection 
76-10-1227
(1)(a)(iv).
(2)
(a)
Sensitive materials are prohibited in the school setting.
(b)
A public school
or an LEA
 may not:
(i)
adopt, use, distribute, provide a student access to, or maintain in the school setting, 
sensitive materials; or
(ii)
permit a speaker or presenter in the school setting to display or distribute 
sensitive materials.
(c)
In evaluating, selecting, or otherwise considering action related to a given 
instructional material under this section, each public school and each LEA shall 
prioritize protecting children from the harmful effects of illicit pornography over 
other considerations in evaluating instructional material.
(d)
If an instructional material constitutes objective sensitive material:
(i)
a public school or an LEA is not required to engage in a review under a subjective 
sensitive material standard; and
(ii)
the outcome of a subjective sensitive material evaluation has no bearing on the 
non-discretionary objective sensitive material conclusion.
(3)
(a)
Except as provided in Subsection (3)(b), the following individuals may initiate a 
sensitive material review under this section:
(i)
an employee of the relevant LEA;
(ii)
a student who is enrolled in the relevant LEA;
(iii)
a parent of a child who is enrolled in the relevant LEA; or
(iv)
a member of the relevant LEA governing board.
(b)
(i)
As used in this Subsection (3)(b), "unsuccessful challenge" means an 
allegation that a given instructional material constitutes sensitive material that the 
LEA concludes to be erroneous, either on direct review or on appeal to the LEA 
governing board, resulting in the retention of the given instructional material.
(ii)
Notwithstanding Subsection (3)(a), after an individual makes three unsuccessful 
challenges during a given academic year, the individual may not trigger a 
sensitive material review under this section during the remainder of the given 
academic year.
(3)
An LEA shall include
(4)
Upon receipt of an allegation from an individual described in Subsection (3)(a), an LEA 
shall:
(a)
(i)
make an initial determination as to whether the allegation presents a plausible 
claim that the challenged instructional material constitutes sensitive material, 
including whether the allegation includes excerpts and other evidence to support 
the allegation; and
(ii)
if the LEA determines that the allegation presents a plausible claim that the 
challenged instructional material constitutes sensitive material under Subsection 
(4)(a)(i), immediately remove the challenged material from any school setting that 
provides student access to the challenged material until the LEA completes the 
LEA's full review of the challenged material under this section;
(b)
(i)
engage in a review of the allegations and the challenged instructional material 
using the objective sensitive material standards; and
(ii)
if the LEA makes a determination that the challenged instructional material 
constitutes objective sensitive material, ensure that the material remains 
inaccessible to students in any school setting;
(c)
only if the LEA makes a determination that the challenged instructional material 
does not constitute objective sensitive material:
(i)
review the allegations and the challenged instructional material under the 
subjective material standards, ensuring that the review includes
 parents who are 
reflective of the members of the school's community when determining if an 
instructional material is
 subjective
 sensitive material
.
;
(ii)
allow student access to the challenged instructional material during the LEA's 
subjective sensitive material review if the student's parent gives consent regarding 
the specific challenged instructional material; and
(iii)
if the LEA makes a determination that the challenged instructional material 
constitutes subjective sensitive material, ensure that the material is inaccessible to 
students in any school setting, including the termination of the parent consent 
option described in Subsection (4)(c)(ii); and
(d)
communicate to the state board the allegation and the LEA's final determination 
regarding the allegation and the challenged instructional material.
(5)
(a)
An individual described in Subsection (3)(a) may appeal an LEA's decision 
regarding a sensitive material review, regardless of whether the LEA removed or 
retained the challenged instructional material, to the LEA governing board.
(b)
An LEA governing board shall vote in a public board meeting to decide the outcome 
of a sensitive material review appeal, clearly identifying:
(i)
the board's rationale for the decision; and
(ii)
the board's determination on each component of the statutory and any additional 
policy standards the board uses to reach the board's conclusions.
(6)
An LEA governing board may not enact rules or policies that prevent the LEA 
governing board from:
(a)
revisiting a previous decision;
(b)
reviewing a recommendation of LEA personnel or a parent-related committee 
regarding a challenged instructional material; or
(c)
reconsidering a challenged instructional material if the LEA governing board 
receives additional information regarding the material.
(7)
(a)
Except as provided in Subsection (7)(d), if the threshold described in Subsection 
(7)(b) is met, each LEA statewide shall remove the relevant instructional material 
from student access.
(b)
The requirement described in Subsection (7)(a) to remove a given material from 
student access applies if the following number of LEAs makes a determination that a 
given instructional material constitutes objective sensitive material:
(i)
at least three school districts; or
(ii)
at least two school districts and five charter schools.
(c)
The state board shall:
(i)
aggregate allegations and LEA determinations described in Subsection (4)(d); and
(ii)
no later than 10 school days after the day on which the condition described in 
Subsection (7)(b) occurs, communicate to all LEAs the application of the 
requirement described in Subsection (7)(a) to remove the material from student 
access.
(d)
(i)
When the threshold described in Subsection (7)(b) is met for a given 
instructional material, in addition to making the communication described in 
Subsection (7)(c), the state board may:
(A)
place the material on the agenda of a public board meeting within 60 days 
after the day on which the state board makes the communication to LEAs 
under Subsection (7)(c); and
(B)
at the specified state board meeting, vote to overturn the application of the 
requirement described in Subsection (7)(a) to remove a given material from 
student access statewide.
(ii)
If the state board votes to overturn the application of the statewide removal 
requirement described in Subsection (7)(a) under Subsection (7)(d)(i):
(A)
the statewide removal requirement described in Subsection (7)(a) no longer 
applies;
(B)
an LEA may choose to return the given material to student access; and
(C)
nothing affects the findings of an LEA governing board regarding removal of 
the given material within the board's LEA.
(e)
This Subsection (7) applies to sensitive materials that LEAs remove from student 
access, regardless of whether:
(i)
the sensitive material determinations occur in the same academic year; or
(ii)
a sensitive material determination occurred before July 1, 2024.
(4)
(8)
The state board shall:
(a)
in consultation with the Office of the Attorney General, provide guidance and 
training to support public schools in identifying instructional materials that meet the 
definition of sensitive materials under this section;
 and
(b)
establish a process through which an individual described in Subsection (3)(a) may 
report to the state board an allegation that an LEA is out of compliance with this 
section; and
(b)
(c)
annually 
report to the Education Interim Committee
 and the Government 
Operations Interim Committee
, at or before the November
 2022
 interim meeting, 
on implementation and compliance with this section, including:
(i)
any policy the state board or an LEA adopts to implement or comply with this 
section;
(ii)
any rule the state board makes to implement or comply with this section; and
(iii)
any complaints an LEA or the state board receives regarding a violation of this 
section, including:
(A)
action taken in response to a complaint described in this Subsection 
(4)(b)(iii)
(8)(c)(iii)
;
 and
(B)
if an LEA retains an instructional material for which the LEA or the state 
board receives a complaint, the LEA's rationale for retaining the instructional 
material
.
; and
(C)
compliance failures that the state board identifies through the reporting 
process described in Subsection (8)(b) and other investigations or research.
(9)
The state shall defend, indemnify, and hold harmless a person acting under color of state 
law to enforce this section for any claims or damages, including court costs and attorney 
fees, that:
(a)
a person brings or incurs as a result of this section; and
(b)
is not covered by the person's insurance policies or any coverage agreement that the 
State Risk Management Fund issues.
(10)
Subject to prioritization of the Audit Subcommittee created in Section 
36-12-8
, the 
Office of the Legislative Auditor General shall:
(a)
conduct an audit of each school district's compliance with this section, ensuring the 
completion of all school district audits before November 2028; and
(b)
annually report to the Education Interim Committee regarding completed sensitive 
material audits under this Subsection (10).
Section 2. 
Effective date.
This bill takes effect on July 1, 2024.