As Utah prepares to enforce its new book ban law, school districts await guidance on navigating its retroactive enforcement. The recent drafting of a plan provides insight into the potential process.

Since the enactment of Utah's comprehensive sensitive materials law in 2022, various school districts and public charters have independently opted to ban more than 262 books from their libraries. These local decisions may have broader implications, as a new law slated to take effect on July 1 could retroactively ban books from all public schools statewide.

In an email to superintendents and charter directors, the Utah State Board of Education (USBE) emphasized that no materials have been removed statewide. However, the challenge lies in determining how to apply the new law retroactively.

HB29: Criteria and Challenges for Statewide Book Bans

The law, HB29, signed by the governor in March, sets the criteria for banned books. It builds upon HB374, passed in 2022, which permits parents to challenge sensitive school materials. Prior book ban decisions were made based on guidelines outlined in the 2022 law. The new law introduces fresh criteria that must be met for statewide bans to occur. Specifically, a book can only be banned statewide if at least three school districts or a combination of two districts and five charter schools decide to ban it based on the new criteria. 

Assessing whether past bans align with the new statewide guidance presents a significant challenge. USBE is currently in the preliminary stages of devising a process, with an initial plan drafted this week. Once finalized, USBE aims to disclose a list of retroactively banned books to districts and charters as early as August.

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Under the new statewide guidance, local education leaders are tasked with evaluating challenged books to determine if they contain 'objective' sensitive material, such as pornography or indecent content, as defined by the Utah code. Alternatively, books could be considered 'subjective' sensitive material deemed harmful to youth without meeting the state's definition of indecency.

The proposed administrative rule outlines an 'initial review' process for previously banned materials before July 1. This review aims to classify materials as 'objective' or 'subjective' sensitive, even if the initial decision did not differentiate between the two. Districts have 30 days after July 1 to conduct these reviews and report their findings to USBE, which will compile and communicate the results by August 5.

Despite local determinations, USBE retains the authority to intervene before a statewide ban takes effect. Within 60 days of meeting the ban threshold, the state school board must hold a hearing to decide whether to uphold the ban. However, under the retroactive enforcement plan, USBE has only 30 days from the hearing to make a final decision.

Schools are advised to adhere to existing policies and laws until July 1. Districts and charters have until September 1 to revise their sensitive material policies in accordance with the new state requirements.

Districts Take Action Ahead of Statewide Book Ban Law

While no statewide removals have been made, some districts are already taking action under the existing law. Ahead of a new statewide book ban law, several Utah school districts are already removing books from their libraries. In March, the Granite School District removed "An Absolutely True Diary of a Part-Time Indian" due to concerns about its depiction of illicit sex. The Granite School District has also taken three books off the shelves for further evaluation. The Davis School District has also removed similar books. These actions are in line with the district's policies on sensitive materials.  

Jessica Horton, co-founder of Let Davis Read, expressed concerns about the recent removal of books and the potential for statewide bans under HB29. She highlighted that while some parents may find certain books uncomfortable, discomfort does not equate to meeting legal definitions of pornography or obscenity. Horton emphasized that individual discomfort should not dictate policy for entire districts or states.

While subject to potential revisions, the draft rule is scheduled for presentation to the state school board in May for final approval.

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