Utah officials unsure how to enforce new statewide book ban retroactively — but it may mean more work for public schools

The state school board is “still in the process of mapping out implementation.”

(Bethany Baker | The Salt Lake Tribune) A woman walks past dozens of banned books displayed on a table in Weller Book Works in Trolley Square for Banned Book Week in Salt Lake City on Thursday, Oct. 5, 2023.

Six Utah school districts have banned Jessie Ann Foley’s young adult novel “The Carnival at Bray” — but each for a different reason.

Davis School District cited violations of Utah’s criminal code regarding “indecent public displays,” while Nebo School District said it removed the title due to low circulation. Washington School District noted “illicit” descriptions of sex.

The three others — Alpine, Canyons and Granite school districts — cited no reason at all.

At least 35 other titles have been banned by three or more Utah school districts for various reasons, according to an analysis by The Salt Lake Lake Tribune — but none for the specific criteria that would lead to a statewide ban under a brand new Utah law.

That new law, starting July 1, will prompt all public schools across the state to remove a book from shelves if at least three school districts (or at least two school districts and five charter schools) specifically determine it amounts to “objective sensitive material” — pornographic or otherwise indecent material, as defined by Utah code.

The law, which Gov. Spencer Cox signed this month, is also supposed to apply retroactively, potentially putting those at least 36 books already banned by three or more school districts in limbo statewide.

The problem is, officials are unsure how to retroactively enforce the law. That’s because a statewide “objective” sensitive material standard has never existed. Until now, districts weren’t required to use that terminology when making removal determinations.

Will districts and charters need to re-review banned books to determine which ones amount to “objective” sensitive material? Or will titles that have already been removed by three or more districts under the former law be banned statewide automatically?

Those questions and more remain unanswered.

“[The Utah State Board of Education] is still in the process of mapping out implementation,” said Sharon Turner, director of public affairs for the USBE.

The state school board has been charged with overseeing and creating the process for a book’s statewide removal.

“We need to consider all options as to best support our districts,” Turner said.

New removal standards trump local process

(Trent Nelson | The Salt Lake Tribune) A "read-in" put on by Let Utah Read to protest the book ban bill at the Utah Capitol in Salt Lake City on Thursday, Feb. 22, 2024.

Once that process is determined, it could mean major policy changes for all Utah school districts.

“We are just beginning to unpack the new ‘sensitive materials review’ amendments along with many other education-related bills that were passed this year,” said Kirsten Stewart, spokesperson for the Canyons School District. “We also await guidance from the Utah State Board of Education, which will factor into our policy reviews.”

Before the new law, schools evaluated sensitive materials according to a 2022 law, which required them to remove titles from student access if they contained “pornographic or indecent content.” Its teeth lay in a section of Utah criminal code that prohibits access to such materials on school property.

Renée Pinkney, president of the state’s largest teacher’s union, called the new law “anti-democratic,” arguing that it stands to burden school districts while eroding local control.

“Our districts were required to create a process to go through any book that was challenged at the local school board level, and they have done that,” she said. “They’ve created those processes, and they’re working. And now, to say that only three districts or two districts and five charters can make the decision for the entire state, you are taking away the power of the local school board members that were duly elected by their community members.”

The new law includes the previous definition of “sensitive” materials but also asks schools to evaluate a key difference — whether the material is objectively or subjectively sensitive, under the newly introduced removal standards. That distinction is important because “subjective” sensitive material determinations will not lead to a statewide ban, according to the law.

Both standards pertain to material that is considered pornographic or indecent, but “objective” sensitive material specifically involves content that violates a section of Utah criminal code regarding “indecent public displays” — any descriptions or depictions of sex or sexual stimulation.

In simpler terms, lawmakers have described “objective” sensitive material as “inherently” pornographic.

“Subjective” sensitive material may not meet the state’s definition of pornography or “indecent public displays,” but would otherwise be considered “harmful” to youth.

Can the state school board intervene in retroactive cases?

(Trent Nelson | The Salt Lake Tribune) A shelf labeling banned books at Ken Sanders' Children's Reading Room at the Leonardo in Salt Lake City on Tuesday, Sept. 6, 2022.

There’s another looming uncertainty about the new law applying retroactively: If books previously banned by enough districts or charters do trigger the statewide ban, would the state school board still have the option to intervene?

According to the new law, state board members can reverse a ban triggered by that statewide removal threshold if they convene a hearing within 60 days to consider reinstating it.

If no hearing is held, the statewide removal stands. But if board leaders vote to reinstate a book, the statewide ban is overturned.

USBE officials did not say whether they plan to exercise that option come July, or whether the 60-day time limit would apply for any retroactive cases.

Gretchen Zaitzeff, president of the Utah Educational Library Media Association, said the new law will likely lead to “self-censorship,” with school librarians buying fewer books that address difficult topics out of fear they might not comply with state law.

UELMA was one of several literary and education organizations — as well as the Utah chapter of the American Civil Liberties Union — that penned an open letter to Cox urging him to veto the bill. Cox didn’t respond to the letter, Zaitzeff said.

“It’s a slippery slope of censorship,” Zaitzeff said. “[Students] will have less access to books about difficult topics that they may actually want to read.”

Supporters of the law have argued it’s about protecting children from accessing porn, but Zaitzeff, who is also the Canyons School District library specialist, argued “we have a semantics problem.”

“The foundational definition used to describe ‘sensitive materials’ is different than the legal definition used to describe pornography,” she said. “... If these works that are under reconsideration were actually pornographic, they would have been out of school long before today.”