By KATHARINE WEBSTER, InDepthNH.org
Children’s access to “obscene” or “harmful” materials in schools and school libraries is the focus of three bills this legislative session, with House Bill 324 causing some drama last week when its author read graphic scenes from two young adult novels on the House floor.
It’s one of three bills introduced this session that would lay out ways for parents to challenge school library and classroom materials, asking that they be removed completely, restricted for certain grades or moved to a more “age-appropriate” setting – for example, from a middle school to a high school library.
The Republican-dominated House passed HB 324 last week and referred it to the Senate, with the Senate Education Committee scheduled to hold a hearing on it next Thursday, April 10, at 9:30 a.m.
The Senate, where Republicans have a supermajority, passed Senate Bill 33 on March 13 and referred it the House. A bill sponsored by Senate Democrats, SB 208, was re-referred to committee, essentially putting it on ice for the year.
And that’s just the tip of the iceberg, as the “Parental Bill of Rights” the House passed two weeks ago would give parents more extensive rights to review all classroom materials, including “workbooks and worksheets, handouts, software, applications, and any digital media made available to students.”
House Bill 10 would also require schools to create procedures for parents to object to any materials used in the classroom “based on beliefs regarding morality, sex, and religion or the belief that such materials are harmful.”
State law already requires schools to notify parents about upcoming lessons involving sex, sexuality or gender identity and gives them the right to opt their children out.
Uproar on the House Floor
The most controversial of the three school-focused bills is HB 324, sponsored by Rep. Glenn Cordelli, R-Tuftonboro, who introduced a virtually identical bill last year that failed to pass.
On the House floor last Wednesday, Cordelli read scenes from “Tricks,” by Ellen Hopkins, and “The Perks of Being a Wallflower,” by Stephen Chbosky. The fictional works address themes including sexuality, drug use, rape and mental health.
Cordelli said the books demonstrate the need for HB 324, which defines obscenity to include images or descriptions of nudity and sexual “excitement,” lays out a challenge process for parents to follow that makes the state Board of Education the final judge of whether material is obscene or harmful and establishes civil and criminal penalties for educators and schools.
“We’ve got to get schools focused on academics,” Cordelli said in an interview. “It’s not just books; there are apps available on school-provided electronic devices with some of this material, and even (live) links to other material and dating sites.”
Cordelli cited the Sora app, a shared ebook and audiobook library used by 127 elementary, middle and high schools in the state. A spokeswoman for Overdrive, the company behind Sora, did not return telephone and email messages.
Opponents said that if HB 324 becomes law, they anticipate a surge in challenges to materials on LGBTQ+ teens and families. They also said that most districts already have good policies in place for parents to challenge materials.
They objected to subjecting educators, librarians and school media specialists to criminal prosecution and potential civil penalties of up to $1,000 per violation, because educators already have to follow state and local policies. Expanding the definition of obscenity is of particular concern, they said.
“Determining whether a challenged book is prurient, patently offensive or lacking in literary value, to use some language from HB 324, is always going to come down to a judgment call,” Jacqueline Benson, a regional leader of Authors Against Book Bans, said in testimony before the House Education Policy and Administration Committee last month.
“Too often, the judgment call about a book’s appropriateness or merit is being made by a single individual or body in a process that excludes other voices,” she said.
What’s Obscene?
Currently, New Hampshire law exempts all educational institutions from the state’s obscenity law, but HB 324 would amend that to exempt only higher education and redefine “obscenity” to include depictions of nudity and “sexual excitement” in addition to sexual acts. It also refers to “deviant” sexual practices without defining them.
That definition of obscenity would not apply to descriptions or images of women breastfeeding their babies or to materials that have “serious literary, scientific, medical, artistic, or political value for minors,” but HB 324 says that such materials can be restricted or removed if they are not age-appropriate.
Ann Marie Banfield, a long-time parents’ rights advocate who supports both HB 324 and SB 33, said both are “compromises” that will encourage parents to keep their children in public schools by providing more transparency around the curriculum, disputed materials and the challenge process.
At the same time, Banfield said that she often tells parents they should not try to remove books from school libraries just because they don’t like the content. Asked if she would challenge books in a high school library meant to instruct LGBTQ+ teens in safe sex practices, she said in an interview that she would not.
Banfield is concerned, however, with adults recommending books with explicit and graphic descriptions of sex to any child under 18, saying that is a form of “sexual abuse.”
“We have people working in our schools who have been charged and convicted of sexual assault on children,” she said.
Gilles Bissonette, legal director at the American Civil Liberties Union of New Hampshire, testified last month that including nudity and a state of “sexual excitement” in HB 324’s definition of obscenity goes beyond established state and federal obscenity laws and court rulings.
“There could be serious constitutional concerns,” Bissonette said, that could invite a legal challenge if the bill becomes law.
And, he said, the criminal provisions in the law are unnecessary because New Hampshire already has a law – RSA 571-B – that makes “exposing minors to harmful materials” a crime. That includes educators, he said.
Bridey Bellemare, executive director of the New Hampshire Association of School Principals and a former school principal, said that what one parent considers “obscene” or harmful can be helpful to another family’s child.
“If there is a book or there are books in a school library that maybe address racial issues, mental health issues, gender identity issues … nobody is forcing a child to take that book out of the library, no one is forcing a child to read or view that content,” she said. “And what if there are other stakeholders in the community who might say, ‘This is applicable to my child or my family unit?’”
Public schools and educators must serve a diverse community, including people whose values they oppose, Bellemare said. And children have a right to read materials in school libraries, even if their parents bar them from checking them out.
Support for HB 324 is driven by people with “very strong opinions about complete banning of various pieces of literature … without saying, ‘Let’s go through the process that school districts have,’” she said.
Criminal and Civil Sanctions Vs. Community Standards
John Chrastka, executive director of EveryLibrary, a national organization that aims to build public support for libraries, said that nationally, educators have been exempt from obscenity laws for decades because the definition of obscenity can change over time and vary among communities.
“House Bill 324 would make it possible for local sheriffs to go into a school and arrest a sex educator, for local people to sue an art teacher,” Chrastka said. “The criminalization of education in your state would be a very significant step down.”
Cordelli said in testimony that’s not his intent, and that the bill protects works with educational value. Sex education would not be considered obscene, nor would it be obscene for an art teacher to show students a picture of Michaelangelo’s statue of David, he said.
Cordelli also said that civil fines would only kick in once a material had been found “obscene” or “harmful,” and that when he worked with the state Attorney General’s Office on the bill’s wording, he was informed that criminal prosecutions would be rare.
The New Hampshire School Boards Association opposes HB 324 because it allows a parent to appeal a local school board’s decision to the appointed state Board of Education – whose rulings would then presumably apply to all public schools statewide, said executive director Barrett Christina.
Obscenity laws and court rulings refer to “community standards,” he said, and each school board should have the right to decide for itself what those standards are. If voters disagree, they can vote the board members out at the next election. Not so with the appointed state board, he said.
“There’s no recourse if the state Board of Education disagrees with a particular curricular material,” he said.
Christina said his organization took no position on SB 33, which only requires school districts to adopt policies allowing parents to challenge materials.
Christina said his organization did propose an amendment that would have included a committee process for reviewing a challenged work. It would also have allowed for extensions to deadlines for investigations and decisions, especially if multiple works were challenged at one time. The Senate Education Committee did not adopt the amendment.
For SB 208, sponsored by Sen. Debra Altschiller, D-Stratham, which lays out a different challenge process for school and public libraries, Christina said the association thought the process was too prescriptive.
The Senate Education Committee re-referred both bills for further study. But SB 33’s sponsor, Sen. Kevin Avard, R-Nashua, asked for a vote on the Senate floor on March 13, and it passed, 12-8, along party lines.
Cordelli is a co-sponsor, while Avard is a co-sponsor of HB 324. The two bills could end up in a committee of conference if both pass the other chamber.