Here’s how Utah plans to enforce statewide book ban retroactively

A list of the first-ever books to be banned from every public school in Utah will be released in two months.

(Trent Nelson | The Salt Lake Tribune) A shelf of books labeled "Banned in Utah" at Ken Sanders bookstore at the Leonardo in Salt Lake City. on Tuesday, Sept. 6, 2022.

Before school begins this fall, Utah officials will send a list of books to all public schools, ordering their “disposal.” Among those titles could be works by renowned authors like Toni Morrison, Judy Blume and Margaret Atwood — titles that some districts and public charters have already banned.

That’s because, under a new law that takes effect July 1, a book can be removed from all schools across the state if at least three school districts (or at least two school districts and five charter schools) specifically determine it amounts to “objective sensitive material” — with pornographic or otherwise indecent content, as defined by Utah code.

The law, which Gov. Spencer Cox signed in March, applies retroactively to all books banned before July 1. Over the last few months, the Utah State Board of Education has been grappling with how to retroactively enforce the law.

The challenge was that, until now, a statewide “objective” sensitive material standard has never existed and districts were not required to use that terminology when making removal determinations.

But on Friday, the state school board solidified that process, taking a step toward determining which titles will be among the first to be banned from every public school in Utah.

Reviewing previously banned material

The new law asks local education leaders to evaluate whether a challenged book amounts to “objective” sensitive material or “subjective” sensitive material. “Subjective” material 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 administrative rule established on Friday outlines how districts and public charters will retroactively apply the new statewide book ban law. It directs schools to report the removal of any materials for which they possess “sufficient information” to justify removal under the new “objective” criteria.

To help districts maneuver the process, the state board also created an “Instructional Materials Guidance Document,” which is not legally binding. It recommends that schools conduct an “initial review” of all previous determinations to decide whether the material qualifies as “objective” or “subjective” sensitive material. The guidance document suggests that two local employees could be responsible for that initial determination.

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.

School districts and charters have only 30 days after July 1 to make their determinations and report them to USBE, according to the rule.

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

Districts also have until Sept. 1 to rewrite their sensitive materials policies to comply with the new law and administrative rule.

Board considers, then reconsiders, a book-burning order

Once the statewide ban list is provided to schools, they must “legally dispose” of those materials and notify parents, according to the administrative rule.

The state board on Friday had considered requiring schools to physically “destroy” objective sensitive material, concerned that children would still find a way to access it.

“I don’t care if it’s shredded, burned, it has to be destroyed one way or another,” board member Brent Strate said, causing some board members to laugh.

But board member Emily Green took offense.

“The work we’re doing here today falls into a level of seriousness that beyond the puns of book burning and book banning, we are, in essence, protecting children from being distributed explicit materials funded under the taxpayer dollar through our public education system,” Green said.

Carol Lear pushed back on Green, arguing that her “jovial attitude” was justified.

“I find it amusing that we’re going to ban books, and we’re going to burn books, and we’re going to cart them beyond the dumpster at the school because kids are so desperate to get a hold of information that they, apparently, aren’t getting from parents,” Lear said. “I have a hard time taking this seriously. And frankly, I hope this is so bad that someone sues.”

Out of concern that requiring schools to physically destroy banned books would leave them open to litigation over the destruction of government property, the board decided the language “legally dispose of” would suffice. Schools are also prohibited from selling or distributing material determined to be “objectively” sensitive, according to the rule.

USBE could still 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, according to the law.

But under the new rule, “three or more” USBE leaders only have 30 days from the time of notification to “request the material be placed on a board agenda for a vote to overturn the statewide removal requirement.”

If no hearing is held, the statewide removal stands.