SB 523-FN - AS INTRODUCED
2024 SESSION
24-2869
02/06
SENATE BILL 523-FN
AN ACT relative to the regulation of public school library materials.
SPONSORS: Sen. Avard, Dist 12; Sen. Gendreau, Dist 1; Rep. Cushman, Hills. 28; Rep. Kofalt, Hills. 32; Rep. Notter, Hills. 12; Rep. Pauer, Hills. 36
COMMITTEE: Education
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ANALYSIS
This bill prohibits material that is obscene or harmful to minors in schools, requires vendors of school library materials to develop appropriate ratings, and creates a procedure for removal and cause of action.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24-2869
02/06
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty Four
AN ACT relative to the regulation of public school library materials.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Justifiable and Non-Commercial Private Dissemination. Amend RSA 650:4, I to read as follows:
I. Institutions or persons having scientific, higher educational, governmental or other similar justification for possessing obscene material; or
2 New Subdivision; Prohibition of Materials Harmful to Minors in Schools. Amend RSA 189 by inserting after section 74 the following new subdivision:
Prohibition of Materials Harmful to Minors in Schools.
189:75 Definitions.
I. For the purpose of this subdivision:
(a) “Educator” shall mean a professional employee of any school district whose position requires certification by the state board pursuant to RSA 189:39. Administrators, educational specialists, and teachers are included within the definition of this term.
(b) “Higher education” shall mean any institution in the university system of New Hampshire or community college system of New Hampshire.
(c) “Material” means any printed matter, visual presentation, web-based content, live performance, or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, or other representation.
(d) “Nudity” shall mean the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering; or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple; or the depiction of covered male genitals in a discernibly turgid state. A mother’s breastfeeding of her baby shall not under any circumstance constitute “nudity,” irrespective of whether or not the nipple is covered during or incidental to feeding.
(e) “Sadomasochistic abuse” shall mean flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself.
(f) “Sexual conduct” shall mean actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby shall not under any circumstance constitute “sexual conduct.”
(g) “Sexual excitement” means the condition of the human male or female genitals when in a state of sexual stimulation or arousal.
II. For purposes of this subdivision, material is harmful to minors when:
(1) Taken as a whole, it predominantly appeals to the prurient, shameful, or morbid interest of minors;
(2) The material depicts or describes nudity, sexual conduct, sexual excitement, or sadomasochistic abuse in a manner that is patently offensive to prevailing standards in the adult community with respect to what is suitable for minors;
(3) The material lacks serious literary, scientific, medical, artistic, or political value for minors; and
(4) The material is inappropriate to the age of the minors to whom it is being made available or presented.
III. No school or school district, person employed by a school or a school district, or person who contracts with a school or school district shall provide or make available, to any minor student, any material that is harmful to minors.
189:76 Complaint Process.
I. No later than November 1, 2025, each local school board shall adopt a complaint resolution policy consistent with this section to be used to address complaints submitted by parents or guardians alleging that material that is harmful to minors has been provided or is currently available to a student enrolled in the local school system who is the child of such parent or guardian. The policy shall be posted on the district web site. The complaint resolution process shall at a minimum require that:
(a) Complaints be submitted in writing to the principal of the school where the student is enrolled; and
(b) Complaints shall provide a reasonably detailed description of the material that is alleged to be harmful to minors.
II. Within 14 calendar days of receiving a written complaint unless another time frame is mutually agreed upon, the school principal or his or her designee shall review the complaint and take reasonable steps to investigate the allegations in the complaint, including, but not limited to, reviewing the material that is alleged to be harmful to minors, if it is available and meeting with the parent or guardian who submitted the complaint.
III. The school principal or his or her designee shall determine whether the material that is the subject of the complaint is harmful to minors.
IV. The school principal or his or her designee shall determine whether student access to the material that is the subject of the complaint shall be removed or restricted.
V. Within 10 school days of receiving the complaint, unless another schedule is mutually agreed to by the parent or permanent guardian and the school principal or his or her designee, the school principal or his or her designee shall inform the parent or guardian in writing as to whether the material that is the subject of the complaint was determined to be harmful to minors, and whether student access to such material will be removed or restricted. If access to the material is determined to be removed or restricted for any student beyond the student who is the child of the parent of guardian, then notice of such restrictions shall be provided to the parents or guardians of all affected students.
VI. Appeals of determinations by the principal or his or her designee provided for in paragraphs IV and V of this section shall be filed with the local school board within 14 calendar days of the determination by the school principal or his or her designee. As part of the appeal process, the local school board shall permit the parent or guardian to provide input as part of the agenda at a regularly scheduled board meeting. Unless another time frame is mutually agreed upon by the parent or guardian and the local school board the review and final disposition of the appeal by the local school board shall be completed within 30 calendar days of receiving the written appeal. Appeals referenced in this paragraph may be filed by any aggrieved parent or guardian, including a parent or guardian who is not the original complainant, but who is the parent or guardian of a student for whom access to material is determined to be removed or restricted.
VII. An aggrieved parent or guardian may appeal the local school board decision to the state board of education who shall hear the appeal pursuant to RSA 21-N:11, III. Such appeal must be filed within 30 calendar days of the decision of the local school board. An aggrieved parent of guardian may include a parent or guardian who is not the original complainant but who is the parent or guardian of a student for whom access to material is determined to be removed or restricted.
189:77 Enforcement and Penalties.
I. Either the attorney general, department of education, or any person claiming to be aggrieved by a violation of sections 75 or 76 of this subsection may initiate a civil action against a school or school district in superior court for legal or equitable relief for violations of sections 75 or 76 of this subsection, provided that such actions shall be limited to claims that a school or school district has not adhered to the complaint process in RSA 189:76 or that material complained of pursuant to RSA 189:76 continues to be made available to a minor student in a manner inconsistent with any final determination made pursuant to RSA 189:76.
II. Any petitioner, if successful, shall be awarded special or general damages of not less than $1,000 for each violation, and costs and reasonable legal fees. Such damages, costs, and fees shall be in addition to equitable relief awarded.
III. Violation of RSA 189:75 paragraph III by an educator shall be considered a violation of the educator code of conduct that justifies disciplinary sanction by the state board of education, but only if such violation occurs after a final determination that the material is involved is harmful to minors pursuant to RSA 189:76 and involves the provision of such material to a minor student in violation of any final determination made pursuant to RSA 189:76. For purposes of this paragraph, a determination is final once all appeals are exhausted or when the deadline for an appeal has expired.
189:78 Vendor Ratings and Review Required.
I. Vendors of library material shall issue appropriate ratings related to sexually explicit material and sexually relevant material previously sold to a public school district or public school. Library material vendors shall not sell any library materials to districts or open enrollment charter schools unless the vendor has issued the appropriate ratings. The vendor is additionally required to submit to the department of education an initial list of sexually explicit material and sexually relevant material in active use by a district or charter school and provide annual updates to that list. Vendors shall not sell library material rated as sexually explicit, and the vendor shall issue a recall for all copies of such material in active use. The department shall review and correct library material ratings and set out provisions regarding vendors who do not comply with the ratings requirements. A district or charter school or a teacher, librarian, or other staff member employed by a district or charter school shall not be liable for any claim or damage resulting from a vendor's violation of this section's provisions with respect to sexually relevant material and sexually explicit material.
II. Each district and charter school shall biennially review the content of each district or school library material that is rated as sexually relevant material by the library material vendor to determine whether to retain the reviewed material. The department shall develop reporting requirements regarding the library material reviewed and the district's or charter school's decision regarding the material.
III. The department shall adopt rules pursuant to RSA 541-A to carry out the requirements of this section.
3 Effective Date. This act shall take effect January 1, 2025.
24-2869
Revised 12/20/23
SB 523-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to the regulation of public school library materials.
FISCAL IMPACT: [ X ] State [ ] County [ X ] Local [ ] None
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Estimated State Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Revenue | $0 | $0 | $0 | $0 | ||
Revenue Fund(s) | None | |||||
Expenditures | $0 | DOE New Positions - $186K in FY25, $192K in FY26, and $198K in FY27
Potential DOJ Costs - Unknown | ||||
Funding Source(s) | General Fund | |||||
Appropriations | $0 | $0 | $0 | $0 | ||
Funding Source(s) | None | |||||
• Does this bill provide sufficient funding to cover estimated expenditures? [X] No • Does this bill authorize new positions to implement this bill? [X] No | ||||||
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Estimated Political Subdivision Impact - Increase / (Decrease) | ||||||
| FY 2024 | FY 2025 | FY 2026 | FY 2027 | ||
Local Revenue | $0 | $0 | $0 | $0 | ||
Local Expenditures | $0 | Indeterminable | ||||
The Department of Justice was initially contacted on 11/29/23 for a fiscal note worksheet. If information is received, a revised fiscal note will be forward to the Senate Clerk’s Office.
METHODOLOGY:
This bill prohibits material that is obscene or harmful to minors in schools, requires vendors of school library materials to develop appropriate ratings, and creates a procedure for removal and cause of action. The Department of Education states this bill requires all library vendors to issue ratings of all material both going forward and retroactively (if a vendor does not adopt a ratings standard, they are prohibited from conducting business with any districts) and it would be required to review and “correct” the ratings. The Department states it currently does not have staff available to meet its requirements as contained in this bill and states it would need two (2) new program specialist IV (labor grade 25) positions, that with a start date of July 1, 2024, would have a total cost of $186,000 in FY 2025, $192,000 in FY 2026, and $198,000 in FY 2027. It should be noted this bill includes neither appropriation nor authorization for new personnel.
It is assumed this bill may impact local school district costs as there are several provisions included in this bill to which school districts will need to comply with. Any costs to local school districts are indeterminable and would vary from district to district.
AGENCIES CONTACTED:
Department of Education and Department of Justice