A Citizen's Guide to Indiana

Senate Bill 12 –in the form it passed the Senate – has two parts which share a theme but which aren’t legally connected: 1) it removes a defense to criminal prosecution for distributing “material harmful to a minor” that is available under current law for educational purposes and for school libraries; and 2) it creates a bureaucratic process for people to complain about “inappropriate material” in school libraries.

CRIME OF DISTRIBUTING MATERIAL HARMFUL TO MINORS

Under current law, it is a level 6 felony to disseminate, provide, perform, etc. “material harmful to minors.” (IC 35-49-3-3). Material is considered “harmful to minors” if: “(1) it describes or represents, in any form, nudity, sexual conduct, sexual excitement, or sado-masochistic abuse; (2) considered as a whole, it appeals to the prurient interest in sex of minors; (3) it is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable matter for or performance before minors; and (4) considered as a whole, it lacks serious literary, artistic, political, or scientific value for minors.”(IC 35-49-2-2).

This largely tracks the definition of “obscenity” as laid out by the Supreme Court for material that doesn’t enjoy First Amendment protection except that it considers what is appropriate for minors rather than what is appropriate to the adult community as the standard. This part is not new and it isn’t being changed by SB 12.

What is being changed has to do with defenses to prosecution. Under current law, there are a number of defenses to prosecution for this crime. Among others, it is a defense if the material was made available for legitimate educational purposes and also if it was made available by a “bona fide school, museum, or public library” (and their employees.) This legislation eliminates the defense in existing law that the material was made available for educational purposes. It also strikes the defense that the material was made available by a school and, instead, limits the defense to colleges, universities, and college & university libraries.

Advocates might argue that the legislation doesn’t create a new crime. That doesn’t make schools or educators uniquely subject to this prohibition of the criminal law. If this law passes, K-12 schools would be on the same footing as the rest of the public. However, it can’t be disputed that this particular legislation does increase the criminal exposure of educators and K-12 employees by removing a defense that is currently available to them. And my personal opinion is that this is utterly unnecessary because there is no evidence that schools are actually disseminating what amounts to obscene material for which they deserve prosecution; and certainly no evidence that they are evading prosecution by asserting the defenses currently available under the law. By “fixing” a problem that doesn’t exist, the General Assembly is, in a sense, defaming educators and schools by creating the impression that schools and teachers are, in fact, disseminating obscenity. There are circumstances in which “the question is an accusation.” Legislation isn’t a question, but it’s the same dynamic.

LIBRARY BOOK LIST & PROCESS FOR COMPLAINING ABOUT BOOKS

The other provision in SB 12 is a new Chapter in the School Law title of the Indiana Code. It requires the school to create a list of all of the books in its school libraries. The list has to contain the title, author name, edition, publisher, and year of publication. This list has to be on the school website and be available in hard copy.

The new law would also require the school to adopt a procedure by which a parent or guardian of a student in the school could complain that a book in the possession of the school library is “inappropriate to students.” The legislation does not contain any guidance on what might qualify as “inappropriate to students.”

STEP ONE: Parent submits a complaint. The book is reviewed by a certified librarian. If the librarian decides to remove the book, the process stops. There does not be a process for anyone else to second guess or protest the removal. If the librarian denies the complaint, then he or she is to provide a written response to the person making the complaint. (There is a middle option where the librarian could decide to put the book in an “age-appropriate” section of the library. I don’t think the legislation does a good job of laying out how that option fits into the process — I think the librarian is not required to provide a written response to the complaint in that situation but the parent could appeal the decision. But, it’s tough to be sure. For the rest of this description, I’m just going to focus on “remove the book” or “deny the complaint.)

STEP TWO: If the librarian denies the parent’s complaint, the parent can escalate the complaint to an “appeal committee.” This committee consists of the principal, the librarian, and a parent or guardian. (I think the parent or guardian can be anyone, but it’s possible they intend that the parent making the complaint is part of the committee. It also doesn’t say whether this parent or guardian has to have a kid in the school or have anything to do with the school.) The appeal committee can uphold, modify, or overturn the recommendation of the librarian and is required to issue a written decision. The parent can further elevate the complaint if he or she disagrees. (Again, there is no process for anyone else to second guess the matter if the appeal committee sides with the parent.)

STEP THREE: The parent can appeal the decision of the appeal committee to the school board. If the school board denies the parent’s complaint, it must issue a written decision. (If it accommodates the complaint, it apparently does not need to make a written decision.)

I have several complaints about this part of the legislation:

1. The list making seems cumbersome – though maybe this is a report that can be generated easily with a library’s current indexing system.
2. It contains no guidance as to what the General Assembly considers “inappropriate to students.” Anything at all can trigger this bureaucratic requirement.
3. It singles out books for a complaint process. Surely there are other aspects of school life that parents grumble about, and those get resolved without taking it to the school board.
4. The school board has enough to do. Our school district’s last meeting took something like 3 hours and it was routine business. Adding book reviewer to board member’s job description will be tough on anyone who has a day job.
5. It’s biased in favor of removal. At every step, if the school removes the book, the process ends. Nobody seems to have the right to appeal that decision. If the General Assembly is going to insist on this process, why not notify the rest of the school community which will be deprived of a book, that the book is being removed at the request of Parent X and give anyone else the option of appealing the removal decision?
6. It’s unnecessary. Parents can already take the issue up with librarians and school administrators and school board members. These people should be considerate of complaints, but at the same time, they should have the option to decide that a book should remain available without being subjected to a process designed to increase pressure on them to remove books.

This legislation doesn’t address actual problems. In fact, it causes a few. But it pokes at the emotional centers of our brains. “Children are being corrupted!” Ultimately, it is another skirmish in the culture wars.

Sheila Kennedy has a good blog post on the latest effort by the Indiana General Assembly to gut public education: universal “scholarship” found in SB 305. Worth just going and reading the whole post, but here’s a bit:

As numerous observers point out, there’s a lot wrong. For one thing, the bill lacks any public oversight or measures ensuring accountability. The state would simply give tax dollars to parents who would be trusted to spend it on their children’s education (there doesn’t seem to be any mechanism to ensure that the dollars would actually be used for education) at any school of their choice, or for home schooling and/or educational materials.

Apparently, all a parent needs to do to get some $7500 per student is fill out an online application promising to spend “part of the money” for the study of “reading, grammar, mathematics, social studies or science.” No standards. No requirements for art, music, foreign language or–perish the thought–civics. Not even those pesky criminal background checks required of public school teachers and volunteers.

Interestingly, the program would be managed by the state’s treasurer–not the Department of Education.

As I’ve repeated ad nauseam, Indiana’s education policy over the last 20 years makes more sense if one understands it as being in pursuit of these goals: subsidize religious education, weaken teacher’s unions, and re-direct public dollars to friends and well-wishers of pro-privatization policymakers. It does not make sense if the goal was to improve educational outcomes for Hoosiers.

HB 1346, introduced by Rep. Teshka, forbids a school from encouraging its employees to use a student’s preferred pronouns or nicknames. Specifically,  School corporations are forbidden from encouraging employees to use:

1) a pronoun, title, or other word to identify a student … that is inconsistent with the student’s sex; or
(2) a name or nickname to identify a student that is inconsistent with the student’s name on the student’s birth certificate.

That second one is written so that my son’s nickname is presumably off limits even though it has nothing to do with sex or gender. My son’s given name is “Lincoln.” That’s kind of a big walking around name for a little guy, so we nicknamed him “Cole.” We ginned it up based on the “col” in the middle of “Lincoln.” But there’s a good case to be made that “Cole” is inconsistent with the name “Lincoln” on his birth certificate; so West Side would have been breaking the law if it encouraged its teachers to use his nickname because he likes it better. Presumably the intent is to go after boys using “girl” names and vice versa. (We might have to outlaw names like “Pat” and “Jan” for those crafty s.o.b.’s looking for a loophole.) But that’s not how it’s written.

In fact, as written, a teacher is only permitted to use the preferred nickname or pronoun if the parent makes a written request and provides a medical note that the student has a “sincere, persistent, and consistent” belief that the student’s gender differs from their sex. So, if our nickname was deemed inconsistent with our kid’s birth certificate name, we’d be out of luck. We could make the request, but we’d be unable to get a doctor’s note that complies with the requirement. 

Additionally, the bill defines “gender fluidity” as any “theory or ideology” that adopts views such as one that it’s possible for an individual’s gender to be based on the individual’s preferences or that an individual’s (biological) sex can be changed to align with the individual’s gender if the biological sex and gender are inconsistent. Schools are forbidden from requiring teachers to be supportive of gender fluidity.

I guess if I were a better person, it wouldn’t take personal experience to help me form my opinion on this issue. But, as luck would have it, I have several friends with transgender children. I’ve known the kids and their parents for a long time now. So, it’s hard for me not to take offense at this legislation because it seems like a monstrous attack on these kids that I know and like and their families. They’re working through issues that can be challenging enough to navigate even when everyone wants good things for the kids and is tackling the issues with an open mind. Now you’ve got the Indiana General Assembly turning these kids into another front in the culture wars.  Just marvelous.

HB 1066, introduced by Representatives Errington and Pfaff, would amend the approach to sex education in Indiana schools. It speaks to medically accurate information, and adds concepts like consent, healthy relationships, and healthy communication skills. Adding those concepts would seem to de-emphasize abstinence which looks to be a primary focus in current Indiana law. Current IC 20-30-5-13 states:

IC 20-30-5-13 Instruction on human sexuality or sexually transmitted diseases

Sec. 13. Throughout instruction on human sexuality or sexually transmitted diseases, a state accredited school shall:
(1) require a teacher to teach abstinence from sexual activity outside of marriage as the expected standard for all school age children;
(2) include in the instruction that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy, sexually transmitted diseases, and other associated health problems; and
(3) include in the instruction that the best way to avoid sexually transmitted diseases and other associated health problems is to establish a mutually faithful monogamous relationship in the context of marriage.

The legislation would also repeal IC 20-34-3-17 which requires the State Board of Education to provide information “stressing the moral aspects of abstinence” in any HIV literature it provides.

I can’t see this getting a hearing, but good on Reps. Errington and Pfaff for trying. It’s o.k. to recommend abstinence, but in terms of educating kids on sex, that’s not really a plan. For starters, a lot of kids will ignore that recommendation. And even the ones who aren’t ready to jump into sex now are going to need good information about sex and the role it plays in relationships eventually. Parents can be a good source of such information, but there are plenty who are unable or unwilling to provide that information for a variety of reasons.

Sen. Doriot has introduced SB 132 which is similar to SB 90 that he introduced last year. The bill would prohibit local government from requiring people developing real estate to dedicate rights-of-way as part of the development process. Instead, local government would have to use the more cumbersome and expensive eminent domain process. Last year, I had this to say:

Several legislators have introduced bills to make school board elections partisan in nature. Currently, school board candidates run for office without being nominated by a party or declaring a party affiliation. Rep. Cash has introduced HB 1036 which would require candidates for school board elections to be nominated by political parties like with other local elections.

Rep. Morrison has introduced HB 1074 which would require school board candidate’s party affiliation to be stated on the ballot and certificate of nomination. In other words, a candidate wouldn’t have to be nominated by the party but they would have to declare a party affiliation. Under this legislation, a candidate can state whatever they want as their party affiliation (or “independent” if they don’t identify with a party). However, a declared affiliation as a Republican or Democrat can be challenged. If the challenger shows that the candidate did not either vote in the Republican or Democratic primaries (as the case may be) in the most recent two elections or get a certification from the county party chair, the candidate can’t claim affiliation with that party. If I’m reading the legislation correctly, a declaration that the person is independent or Libertarian or Green Party or anything else isn’t subject to challenge. (Which, if we’re going to do this, seems suspect. The person who lives in a far left school board district but has voted Republican every election since the 80s can run for school board under a socialist label if he or she wants.)

Sen. Sandlin has introduced SB 188 which reads pretty much the same as Rep. Morrison’s HB 1074.

Whatever issues school boards have, I don’t see these proposals making them any better.