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:
- The list making seems cumbersome – though maybe this is a report that can be generated easily with a library’s current indexing system.
- It contains no guidance as to what the General Assembly considers “inappropriate to students.” Anything at all can trigger this bureaucratic requirement.
- 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.
- 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.
- 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?
- 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.