School districts await statewide book ban list as Utah plans to retroactively enforce new law

The Utah State Board of Education is still determining how the state’s new book ban law can be applied retroactively. But a plan drafted this week offers a glimpse into how the process could work.

(Francisco Kjolseth | The Salt Lake Tribune) Librarian Debbie Montgomery adds books to school library shelves at Desert Sky Elementary in Eagle Mountain on Monday, Aug. 21, 2023. The Utah State Board of Education is still determining how the state's new book ban law can be applied retroactively. But a plan drafted this week offers a glimpse into how the process could work.

Since Utah’s sweeping sensitive materials law took effect in 2022, certain school districts and public charters throughout the state have individually decided to ban over 262 books from their shelves.

Now, those local decisions could lead to books being banned from every public school in the state, under a new law that takes effect July 1 and applies retroactively.

“Please be aware that at this time, no material has been removed statewide,” the Utah State Board of Education said in an email sent to superintendents and charter directors Tuesday.

But that could soon change — once school board leaders figure out how exactly to apply the new law retroactively.

The problem: All those previous book ban decisions were based on statewide guidance outlined in the 2022 law. The new book ban law introduces brand new guidance, which must be adhered to in order for books to be banned statewide.

And that statewide ban only happens if at least three school districts (or at least two school districts and five charter schools) decide to ban a title based on the new guidance.

Determining whether or not past book ban decisions jive with the new statewide guidance is no easy task. USBE is still in the early stages of formulating the process — an initial plan was drafted this week.

But once it’s finalized, USBE expects to disclose a list of all retroactively banned books to districts and charters as early as August.

Revisiting — and reviewing — previous book bans

The new statewide guidance asks local education leaders to evaluate whether a challenged book amounts to “objective” sensitive material — pornographic or otherwise indecent material, as defined by Utah code.

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

In that case, the book could still be removed from local shelves, but the statewide book ban threshold only applies to “objective” sensitive material.

The proposed administrative rule meant to outline how previous book bans could retroactively apply to the new statewide book ban law instructs schools to perform an “initial review” of all materials removed prior to July 1.

For some districts, like the Washington County School District, that may mean revisiting more than 50 titles that it has already banned, according to an analysis by The Salt Lake Tribune.

The initial review is meant to determine whether or not the material constitutes “objective” or “subjective” sensitive material — even if the original decision to remove the book did not consider the newly required distinction. The draft rule states that two local employees would be responsible for that determination.

School districts and charters would only have 30 days after July 1 to conduct these “initial reviews” and report their determinations to USBE, according to the draft rule.

USBE would then compile those determinations and communicate to schools by Aug. 5 which titles have met the statewide removal threshold, the draft rule states.

Option for USBE to intervene

Even if enough school districts or charter schools determine a book is “objectively” sensitive, USBE still has the ability to intervene before a statewide book ban goes into effect.

To do so, the state school board needs to hold a hearing within 60 days of the threshold being met.

But under the plan to retroactively enforce the new law, USBE leaders only have 30 days from that time to meet and decide whether to keep the title on certain shelves.

If no hearing is held, the statewide removal stands.

Moving forward, until July 1, schools “should continue to follow their current policies and operate within existing laws, rules and policies until further guidance is offered,” USBE advised this week.

Charters and districts would otherwise have until Sept. 1 to revise their current sensitive material policies to adhere to the new state requirements, according to the draft rule.

The draft rule could still see revisions, but officials said it will be presented to the state school board in May for final approval.