Policy 4211 FAQ

HOW CAN MATERIAL BE REMOVED FROM WASHINGTON COUNTY SCHOOL DISTRICT’S MEDIA CENTER LIBRARIES?

There are three ways that material may be deselected or removed from the library:

• By following Policy 4211: Section 4.1.6, Standard ALA weeding practices.
• By following Policy 4211: Section 4.1.7, Utah Bright-line rule (Compliant with UCA §76-10-1227 and
  UCA §76-10-1228, Indecent public displays)
• By following Policy 4211: Section 5, Removal by Committee (Compliant with UCA §53G-10-103,
  sensitive instructional materials).

POLICY 4211: SECTION 4.1.6.

Section 4.1.6 is the standard ala weeding practices that every librarian should be aware of, in that material may be deselected or weeded based on “accuracy, currency, relevancy, checkout frequency, space limitations, edition, format, physical condition, and number of copies.”

POLICY 4211: SECTION 4.1.7.

Section 4.1.7 is a bright-line rule. A bright-line rule means that in the event that material contains one or more passages that cross the “bright line”, it should be immediately removed without regard to any other section of the policy. That bright line is clearly defined in UCA§76-10-1227 and UCA §76-10-1228. This is also explained in the memorandum sent to us by the Attorney General’s Office on June 1st, 2022, which superseded all prior memorandums on this subject.

UCA §76-10-1227 (2)(c) states:

A description or depiction of illicit sex or sexual immorality as defined in
Subsection (1)(a)(i), (ii), or (iii) has no serious value for minors.

UCA §76-10-1227 (1)(a)(i), (ii), and (iii) state:

(1) For purposes of this section and Section 76-10-1228:
“Description or depiction of illicit sex or sexual immorality” means:
(i) human genitals in a state of sexual stimulation or arousal;
(ii) acts of human masturbation, sexual intercourse, or sodomy;
(iii) fondling or other erotic touching of human genitals or pubic region;

UCA §76-10-1228 states:

(1) Subject to the affirmative defense in Subsection 76-10-1208(3), a person is guilty of a class A misdemeanor who willfully or knowingly:

(a) engages in the business of selling, lending, giving away, showing, advertising for sale, or distributing to a minor or has in

the person’s possession with intent to engage in that business or to otherwise offer for sale or commercial distribution to a minor any material with:

(i) a description or depiction of illicit sex or sexual immorality; or
(ii) a nude or partially denuded figure; or
(b) publicly displays at newsstands or any other establishment frequented by minors, or where the minors are or may be invited as a part of the general public, any motion picture, or any live, taped, or recorded performance, or any still picture or photograph, or any book, pocket book, pamphlet, or magazine the cover or content of which:

(i) exploits, is devoted to, or is principally made up of one or more descriptions or depictions of illicit sex or sexual immorality; or
(ii) consists of one or more pictures of nude or partially denuded figures.

(2)

(a) A violation of this section is punishable by:

(i) a minimum mandatory fine of not less than $500;
and
(ii) incarceration, without suspension of sentence in any way, for a term of not less than 30 days.
(b) This section supersedes Section 77-18-105.

A bright-line rule doesn’t require a committee or an evaluation of the material as a whole. In fact, a decision to retain a material that meets the definition of the bright-line rule because an individual believed that it had significant value to minors would be legally indefensible because the law already declares that it has no significant value to minors. This could also make the individual subject to the criminal penalties associated with that law.

The best example to explain this is: In the event an individual brings in a pornographic picture and hangs it on the wall in a school, the school should use the same bright-line rule to remove that picture from the premise immediately.

Literature that contains a “description or depiction of illicit sex or sexual immorality” with “no serious value for minors” is treated no differently in the eyes of Utah Law than a pornographic photo. Because of this, the action is simple; if it meets the definition the district will remove it.  

THE DISTRICT USES THREE QUESTIONS TO IDENTIFY IF THE MATERIAL MEETS THE BRIGHT LINE RULE:

• Does the material include a scene that contains
human genitals in a state of sexual stimulation or arousal; or acts of human masturbation, sexual intercourse, or sodomy; or fondling or other erotic touching of human genitals or pubic region?  
   IF YES, MOVE TO THE NEXT QUESTION; IF NO, THE MATERIAL DOES NOT MEET THE BRIGHT LINE RULE
• Do any of the scenes in question describe or depict the act or the genitalia in a state of arousal?
   IF YES, MOVE TO THE NEXT QUESTION; IF NO, THE MATERIAL DOES NOT MEET THE BRIGHT LINE RULE
• Is there any other way to interpret the scene that would not meet the criteria?
   IF YES, THE MATERIAL DOES NOT MEET THE BRIGHT LINE RULE; IF NO, THE MATERIAL DOES MEET THE BRIGHT LINE RULE

In this process, sexual situations are ALWAYS considered equally and free from bias regardless of the disposition of the sexual activity. Sex, sexual orientation, gender identity, disability, race, religion, or national origin are never a factor in the consideration of these requirements. 

Any other material not meeting the definition of “description or depiction of illicit sex or sexual immorality” with “no serious value for minors” must be formally challenged and evaluated as a whole by the District Media Review Committee to determine if it has serious value for minors and if any action should be taken on the material.

POLICY 4211: SECTION 5.

 In the event that a material does not qualify under section 4.1.6 or 4.1.7. It may only be de-selected or removed “in accordance with the procedures set forth in section 5”. This section complies with UCA §53G-10-103, which was implemented by 2022 HB 374 “Sensitive Materials in Schools.” Material not meeting the legal criteria of containing a “Description or depiction of illicit sex or sexual immorality” that by law “has no serious value for minors.” must be evaluated by a formal review committee, with parents representing the community, that determines if the material is classified as “Sensitive” per UCA §53G-10-103(3).

UCA §53G-10-103(1)(g)(i) states:

(i) “Sensitive material” means an instructional material that is pornographic or indecent material as that term is defined in Section 76-10-1235.

UCA §53G-10-103(2) states:

(a) Sensitive materials are prohibited in the school setting.
(b) A public school may not:
  (i) adopt, use, distribute, provide a student access to, or maintain in the school setting, sensitive materials; or
  (ii) permit a speaker or presenter in the school setting to display or distribute sensitive materials.

UCA §53G-10-103(3) states:

An LEA shall include parents who are reflective of the members of the school’s community when determining if an instructional material is sensitive material.

Individuals with Standing are welcome to submit a formal challenge using form 944. Once this occurs, the District Media Review Committee, consisting of 3 parents selected from the community, will meet and review the material as a whole to determine if the material meets the legal requirements to be classified as “sensitive”. Each member of the District Media Review Committee shall read challenged material that is written in its entirety or review the non-written challenged material as a whole prior to participating in Committee discussions or participating in decision making.

THE DISTRICT MEDIA REVIEW COMMITTEE WILL MAKE A DETERMINATION ABOUT THE CHALLENGED MATERIAL BASED ONLY ON THE FOLLOWING FACTORS:

5.8.2.1. Whether the material constitutes sensitive material. In deciding whether the material constitutes sensitive material, the Committee must consider all elements of the definitions of pornographic or indecent materials as defined in Utah Code §76-10-1235,§76-10-1201, §76-10-1203, and §76-10-1227.
5.8.2.2. Whether the material is age appropriate due to vulgarity and/or violence. In deciding whether the material is age appropriate due to vulgarity and/or violence, the Committee must consider the material taken as a whole and consider whether it has serious literary, artistic, political, or scientific value.
5.8.2.3. The Committee shall use objective criteria to determine the material’s serious literary, artistic, political, or scientific value, and may include reliable, expert reviews of the material or other objective sources. Those on the Committee may rely on their experience and background and contemporary community standards to determine whether the material is not age appropriate.

Furthermore, the committee members are instructed that sexual situations must ALWAYS be considered equally and free from bias regardless of the disposition of the sexual activity. Sex, sexual orientation, gender identity, disability, race, religion, or national origin may never be a factor in the consideration of these requirements. 

POTENTIAL ACTIONS OF THE DISTRICT MEDIA REVIEW COMMITTEE MAY INCLUDE:

5.8.5.1. Retain the material in all School Libraries
5.8.5.2. Remove the material from all School Libraries
5.8.5.3. Remove the material from some School Libraries in which the committee determines that the material is not age appropriate for that school’s student population.

Policy 4211 is based on the following legal statutes, case law, and official memos.

United States Constitution

• First Amendment

Utah State Code

• UCA §53G-10-103
• UCA §76-10-1201
• UCA §76-10-1203
• UCA §76-10-1227
• UCA §76-10-1228

Case Law

• Feb. 24, 1969 | John F. TINKER and Mary Beth Tinker, Minors, etc., et al., Petitioners, v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT et al.
• June 25, 1982 | Board of Education, Island Trees Union Free School District vs Steven A. PICO

Official Memos

• Utah Attorney General: Official Memorandum-Laws Surrounding School Libraries
• Office of Legislative Research and General Counsel-H.B. 374 and the Office of the Attorney General’s Guidance

Utah Official Summary of Sensitive Material

• Source: June 14, 2023, Office of Legislative Research and General Council Presentation on Sensitive Materials

 Washington County School District uses several processes to assist in navigating this complex policy:

PROCUREMENT OF MATERIALS

PDF Copy

COMPLAINT AND REMOVAL OF MATERIALS

PDF Copy

ONGOING MAINTENANCE STATUS UPDATE PROCESS

1. Weekly, the Library Media District leads for secondary and elementary review new submissions in the tracking spreadsheet to update submissions with the following statuses:
   1. Duplicate Review
   2. Review Started

INTERNAL BRIGHT LINE REVIEW STATUS UPDATE PROCESS

1. Librarians submit the final review to the “Library Material Review – Internal” form.
2. Librarians email gro.21khsaw@lairetamaidem if they believe the material needs to be reviewed for statute violation.
3. Once the email is received and the concern is validated by District Administration, the material is placed on Hold status in the tracking spreadsheet by the Learning and Media Coordinator and an email is sent to all media personnel indicating the book needs to be placed on hold.
4. District Administration reviews the supplied photos of the passage(s) to determine if they meet the criteria for a Bright Line statute violation.
   1. If the material does not meet the Bright Line
      1. the Learning and Media Coordinator marks the material as “Returned to Library” in the tracking spreadsheet,
      2. and sends an email to all Media Center Librarians indicating the material should be returned to circulation.
   2. If the material does meet the Bright Line, it is marked as “Removed for statute violations as defined in UCA”.
      1. The Technology Department Secretary
         1. is notified by District Administration,
         2. sends an email to all Media Center Librarians requesting that the material be sent to the Technology and Media Department office,
         3. documents and records the statute violation,
         4. and disposes of the materials following district procedure. 

COMMUNITY BRIGHT LINE REVIEW STATUS UPDATE PROCESS

1. Submission received in the “Material Bright Line Violation Community Submission” form.
2. Once the submission is received and the concern is validated by District Administration, the material is placed on Hold status in the tracking spreadsheet by the Learning and Media Coordinator and an email is sent to all media personnel indicating the book needs to be placed on hold.
3. District Administration reviews the supplied information on the passage(s) to determine if they meet the criteria for a Bright Line statute violation.  They also review copies of the material to ensure that the passages identified are found within the material that the District possesses.
   1. If the material in the district’s possession does not meet the Bright Line
      1. the Learning and Media Center Librarian marks the material as “Returned to Library” in the tracking spreadsheet,
      2. and sends an email to all Media Center Librarians indicating the material should be returned to circulation.
   2. If the material in the district’s possession does meet the Bright Line, it is marked as “Removed for statute violations as defined in UCA”.
      1. The Technology Department Secretary
         1. is notified by District Administration,
         2. sends an email to all Media Center Librarians requesting that the material be sent to the Technology and Media Department office,
         3. documents and records the statute violation,
         4. and disposes of the materials following district procedure.

FORMAL CHALLENGE STATUS UPDATE PROCESS

1. No action is taken on the material until a decision is made by the committee unless the passages identified meets the bright-line criteria.  If so, the “Community Bright Line Review Process” is used.
2. Once a decision is made:
   1. If the committee determines that the material should remain in the District’s Media Center Libraries, District Administration marks the material as “Formal Challenge: No Action Taken” in the tracking spreadsheet.
   2. If the committed determines that the material should have some restrictions applied, the following actions are taken by the Technology Department Secretary:
      1. The secretary is notified by District Administration,
      2. sends an email to all applicable Media Center Librarians requesting that the material be sent to the Technology and Media Department office,
      3. documents the “Removed via Formal Challenge” status,
      4. records the committee’s restrictions for the material in the tracking spreadsheet,
      5. and disposes of the applicable materials following district procedure.
   3. If the committee determines that the material should be removed, the following actions are taken by the Technology Department Secretary:
      1. The secretary is notified by District Administration,
      2. sends an email to all Media Center Librarians requesting that the material be sent to the Technology and Media Department office,
      3. documents the “Removed via Formal Challenge” status,
      4. records the committee decision in the tracking spreadsheet,
      5. and disposes of the materials following district procedure.

The Media Center Librarians receive regular training and calibrate their understanding of Policy 4211 at their regular Media Center Librarian PLC Meetings.  In addition, Washington County School District uses the following training to help librarians understand Policy 4211.

• Librarian Material Content Training Slides.pdf
• Principals Library Material Content Training Slides.pdf
• Policy 4211 Training Video