House File 361 - Introduced HOUSE FILE 361 BY HAYES , STOLTENBERG , SHIPLEY , SHERMAN , HENDERSON , CISNEROS , DIEKEN , OSMUNDSON , FISHER , GOLDING , and M. THOMPSON (COMPANION TO SF 305 BY SALMON) A BILL FOR An Act relating to the dissemination of certain specified 1 materials, including the prohibition of certain specified 2 materials in schools and civil actions to determine 3 obscenity, modifying the responsibilities of the department 4 of education, and providing civil penalties. 5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 6 TLSB 1150YH (1) 90 jda/rh

H.F. 361 Section 1. Section 256.9, Code 2023, is amended by adding 1 the following new subsection: 2 NEW SUBSECTION . 66. Develop and make available on the 3 department’s internet site a comprehensive list of all 4 notifications received pursuant to section 280.35, subsection 5 6, sortable by the book’s title and author, and the school 6 districts, accredited nonpublic schools, or charter schools 7 that have removed the book from libraries operated by the 8 school district, accredited nonpublic school, or charter school 9 or from classrooms or any areas on school district, accredited 10 nonpublic school, or charter school property. The department 11 shall update the list at least once each month. 12 Sec. 2. Section 256E.7, subsection 2, Code 2023, is amended 13 by adding the following new paragraphs: 14 NEW PARAGRAPH . 0j. Be subject to and comply with section 15 280.33 relating to the prohibition on the use of standards or 16 guidance developed by the American library association when 17 determining whether to acquire a book for a school library or 18 remove a book from a school library in the same manner as a 19 school district. 20 NEW PARAGRAPH . 00j. Be subject to and comply with section 21 280.34 relating to students serving on committees that 22 determine, or provide recommendations related to, whether a 23 material in a school library should be removed because it may 24 constitute or contain hard-core pornography or obscene material 25 in the same manner as a school district. 26 NEW PARAGRAPH . 000j. Be subject to and comply with section 27 280.35 relating to prohibitions on the provision of obscene 28 material and hard-core pornography in the same manner as a 29 school district. 30 Sec. 3. Section 272.2, subsection 14, paragraph b, 31 subparagraph (1), Code 2023, is amended by adding the following 32 new subparagraph division: 33 NEW SUBPARAGRAPH DIVISION . (0g) Providing obscene 34 material or hard-core pornography to students in a school 35 -1- LSB 1150YH (1) 90 jda/rh 1/ 13

H.F. 361 library, classroom, or any other area on school property, 1 or requiring a student to read or view obscene material or 2 hard-core pornography under section 280.35. For purposes of 3 this subparagraph division, “obscene material” and “hard-core 4 pornography” mean the same as defined in section 728.1. 5 Sec. 4. Section 272.2, subsection 14, Code 2023, is amended 6 by adding the following new paragraph: 7 NEW PARAGRAPH . f. The board shall suspend the license of 8 an administrator or a teacher upon the board’s finding by a 9 preponderance of evidence that the administrator or teacher 10 violated an injunction entered pursuant to section 280.35, 11 subsection 4. 12 Sec. 5. Section 277.29, Code 2023, is amended to read as 13 follows: 14 277.29 Vacancies. 15 Failure to elect at the proper election or to appoint within 16 the time fixed by law or the failure of the officer elected 17 or appointed to qualify within the time prescribed by law; 18 the incumbent ceasing for any reason to be a resident of 19 the district or removing residence from the subdistrict; the 20 resignation or death of the incumbent or of the officer-elect; 21 the removal of the incumbent from, or forfeiture of, the 22 office, or the decision of a competent tribunal declaring the 23 office vacant; the conviction of the incumbent of a felony, as 24 defined in section 701.7 , a violation of section 280.35, or of 25 any public offense involving the violation of the incumbent’s 26 oath of office, shall constitute a vacancy. 27 Sec. 6. NEW SECTION . 280.33 School library materials —— 28 prohibitions. 29 The board of directors of a school district and the 30 authorities in charge of an accredited nonpublic school shall 31 not use any standards or guidance developed by the American 32 library association when determining whether to acquire a book 33 for a library operated by the school district or accredited 34 nonpublic school or remove a book from a library operated by 35 -2- LSB 1150YH (1) 90 jda/rh 2/ 13

H.F. 361 the school district or accredited nonpublic school. 1 Sec. 7. NEW SECTION . 280.34 Library materials review 2 committee. 3 1. For purposes of this section: 4 a. “Hard-core pornography” means the same as defined in 5 section 728.1. 6 b. “Obscene material” means the same as defined in section 7 728.1. 8 2. The board of directors of a school district and the 9 authorities in charge of an accredited nonpublic school shall 10 not allow a student serving on any committee that determines, 11 or provides recommendations related to, whether a material in a 12 library operated by the school district or accredited nonpublic 13 school should be removed to view the material being considered 14 for removal if the material is being considered for removal 15 because it may constitute or contain hard-core pornography or 16 obscene material. 17 Sec. 8. NEW SECTION . 280.35 Obscene material and hard-core 18 pornography in schools and school libraries. 19 1. As used in this section, unless the context otherwise 20 requires: 21 a. “Administrator” means and includes a school 22 superintendent, assistant superintendent, educational 23 director, principal, assistant principal, and other 24 individuals authorized to assist in performing noninstructional 25 administrative duties. 26 b. “Hard-core pornography” means the same as defined in 27 section 728.1. 28 c. “Obscene material” means the same as defined in section 29 728.1. 30 d. “Provides” means to make available for a student to 31 use or to supply to a student. “Provides” includes placing a 32 material, or causing a material to be placed, in a school or in 33 a library operated by a school where a student could reasonably 34 be expected to find the material or observe the material. 35 -3- LSB 1150YH (1) 90 jda/rh 3/ 13

H.F. 361 e. “School” means and includes all of the following: 1 (1) A charter school established in accordance with chapter 2 256E. 3 (2) A nonpublic school as that term is defined in section 4 280.2. 5 (3) A public school district as described in chapter 274. 6 f. “Student” means an individual who is enrolled in and 7 attending a school in kindergarten through grade twelve. 8 g. “Teacher” means the same defined in section 272.1. 9 “Teacher” includes a qualified teacher librarian licensed by the 10 board of educational examiners. 11 2. A school shall designate at least one administrator to 12 ensure that no obscene material or hard-core pornography is 13 present and available to students in a library operated by the 14 school, in school classrooms, or in any other areas on school 15 property. 16 3. a. (1) An administrator shall not knowingly provide 17 obscene material to a student in a library operated by the 18 school, in a school classroom, or in any other area on school 19 property. 20 (2) A teacher shall not knowingly provide obscene material 21 to a student in a library operated by the school, in a school 22 classroom, or in any other area on school property. 23 b. (1) An administrator shall not knowingly provide 24 hard-core pornography to a student in a library operated by the 25 school, in a school classroom, or in any other area on school 26 property. 27 (2) A teacher shall not knowingly provide hard-core 28 pornography to a student in a library operated by the school, 29 in a school classroom, or in any other area on school property. 30 c. A teacher shall not knowingly require a student to read 31 or view obscene material as part of the teacher’s instructional 32 program or curriculum. 33 d. A teacher shall not knowingly require a student to 34 read or view hard-core pornography as part of the teacher’s 35 -4- LSB 1150YH (1) 90 jda/rh 4/ 13

H.F. 361 instructional program or curriculum. 1 4. a. A parent or guardian of a student alleging a 2 violation of subsection 3 by an administrator or teacher 3 may bring a civil action for damages and injunctive relief 4 against the school that employs the administrator or teacher 5 to prohibit the administrator or teacher from continuing such 6 violation. 7 b. If a parent or guardian is the prevailing party in a 8 civil action instituted pursuant to paragraph “a” , all of the 9 following shall apply: 10 (1) The court shall award reasonable attorney fees to the 11 parent or guardian. 12 (2) The court shall assess a civil penalty against the 13 school that employs the administrator or teacher, not less than 14 five thousand dollars plus an additional five hundred dollars 15 per day for each day a violation occurs during the pendency 16 of the civil action. However, the court shall not assess the 17 additional civil penalty provided in this subparagraph for a 18 violation of subsection 3, paragraph “a” , if the administrator 19 or teacher, or the school that employs the administrator or 20 teacher, removes the obscene material from the library operated 21 by the school, school classroom, or any other area on school 22 property during the pendency of the civil action. Revenue 23 from the civil penalty provided in this subparagraph shall be 24 remitted to the treasurer of state for deposit in the general 25 fund of the state. 26 (3) In the case of a violation of subsection 3, paragraphs 27 “a” or “c” , the court shall order the school that employs the 28 administrator or teacher to pay not less than ten thousand 29 dollars in damages to the parent or guardian. 30 (4) In the case of a violation of subsection 3, paragraphs 31 “b” or “d” , the court shall order the school that employs the 32 administrator or teacher to pay not less than twenty thousand 33 dollars in damages to the parent or guardian. 34 (5) The clerk of court shall send a copy of the court’s 35 -5- LSB 1150YH (1) 90 jda/rh 5/ 13

H.F. 361 order issued pursuant to paragraph “a” and a copy of this 1 section by restricted certified mail, return receipt requested, 2 to the board of educational examiners, the attorney general, 3 and the county attorney of the county in which the school that 4 employs the administrator or teacher in violation of subsection 5 3 is located. 6 5. A parent or guardian who was the prevailing party in 7 a civil action instituted pursuant to subsection 4 may bring 8 a civil action for damages against the school that employs 9 the administrator or teacher if the administrator or teacher 10 violates an injunction issued pursuant to subsection 4. If a 11 parent or guardian is the prevailing party in a civil action 12 instituted pursuant to this subsection, the clerk of court 13 shall send a copy of the court’s order issued pursuant to this 14 subsection and a copy of this section by restricted certified 15 mail, return receipt requested, to the board of educational 16 examiners. Damages awarded pursuant to this subsection shall 17 include all of the following: 18 a. Actual damages for injuries resulting from the 19 administrator’s or teacher’s initial violation of subsection 20 3 and the administrator’s or teacher’s violation of the 21 injunction. 22 b. A penalty in an amount determined by the court, but 23 not less than twenty thousand dollars plus an additional one 24 thousand dollars per day for each day the administrator’s or 25 teacher’s violation of the injunction continues. 26 c. The state of Iowa hereby waives immunity from suit and 27 consents to the jurisdiction of any court in which an action 28 is brought against a charter school established in accordance 29 with chapter 256E, or a public school district as described in 30 chapter 274, with respect to any cause of action arising out 31 of this subsection. Such action shall be heard and determined 32 pursuant to rules otherwise applicable to civil actions brought 33 in the particular court having jurisdiction of the suit and 34 the parties to the suit shall have the right of appeal from 35 -6- LSB 1150YH (1) 90 jda/rh 6/ 13

H.F. 361 any judgment, decree, or decision of the trial court to the 1 appropriate appellate court under applicable rules of appeal. 2 6. a. The board of directors of each school district, the 3 authorities in charge of each accredited nonpublic school, and 4 the governing board of each charter school shall notify the 5 department of education that the board of directors of the 6 school district, the authorities in charge of the accredited 7 nonpublic school, or the governing board of the charter school 8 has removed a book from a library operated by the school, a 9 classroom, or any area on school property because the board of 10 directors of the school district, the authorities in charge 11 of the accredited nonpublic school, or the governing board of 12 the charter school determined that the book constituted or 13 contained hard-core pornography or obscene material, within 14 seven days after removal. The notification shall contain the 15 book’s title and author. 16 b. A school shall remove a book that is on the list 17 maintained by the department of education pursuant to section 18 256.9, subsection 66, from any library operated by the school, 19 a classroom, or any area on school property. 20 7. A county attorney or the attorney general may institute 21 civil actions to enforce the provisions of this section. A 22 county attorney’s or the attorney general’s receipt of a 23 copy of a court’s injunctive order provided by the clerk of 24 court issued pursuant to subsection 4, along with subsequent 25 information that a violation of subsection 3 is continuing to 26 occur, shall constitute probable cause that a violation of 27 subsection 3 has occurred. 28 Sec. 9. Section 728.1, Code 2023, is amended by adding the 29 following new subsection: 30 NEW SUBSECTION . 1A. “Hard-core pornography” means 31 material depicting representations of oral, anal, or vaginal 32 intercourse, actual or simulated, involving humans, or 33 depicting patently offensive representations of masturbation, 34 excretory functions, or bestiality, or lewd exhibition of the 35 -7- LSB 1150YH (1) 90 jda/rh 7/ 13

H.F. 361 genitals. 1 Sec. 10. Section 728.4, Code 2023, is amended to read as 2 follows: 3 728.4 Rental or sale of hard-core pornography material 4 depicting certain patently offensive representations . 5 A person who knowingly rents, sells, or offers for 6 rental or sale material depicting patently offensive 7 representations of oral, anal, or vaginal intercourse, actual 8 or simulated, involving humans, or depicting patently offensive 9 representations of masturbation, excretory functions, or 10 bestiality, or lewd exhibition of the genitals, which the 11 average adult taking the material as a whole in applying 12 statewide contemporary community standards would find appeals 13 to the prurient interest; and which material, taken as a whole, 14 lacks serious literary, scientific, political, or artistic 15 value, upon conviction , is guilty of an aggravated misdemeanor. 16 However, second and subsequent violations of this section by 17 a person who has been previously convicted of violating this 18 section are class “D” felonies. Charges under this section 19 may only be brought by a county attorney or by the attorney 20 general. 21 Sec. 11. Section 728.6, Code 2023, is amended to read as 22 follows: 23 728.6 Civil suit to determine obscenity. 24 Whenever the attorney general or the county attorney of 25 any county has reasonable cause to believe that any person is 26 engaged or plans to engage in the dissemination or exhibition 27 of obscene material within the county attorney’s county 28 to minors , the attorney general or the county attorney may 29 institute a civil proceeding in the district court of the 30 county to enjoin the dissemination or exhibition of obscene 31 material to minors. Such application for injunction is 32 optional and not mandatory and shall not be construed as a 33 prerequisite to criminal prosecution for a violation of this 34 chapter . 35 -8- LSB 1150YH (1) 90 jda/rh 8/ 13

H.F. 361 Sec. 12. Section 728.7, Code 2023, is amended to read as 1 follows: 2 728.7 Exemptions for public libraries and educational 3 institutions. 4 Nothing in this chapter prohibits the use of appropriate 5 material for educational purposes in any accredited school, 6 or any public library, or in any educational program in which 7 the minor is participating. Nothing in this chapter prohibits 8 the attendance of minors at an exhibition or display of art 9 works or the use of any materials in any public library. For 10 purposes of this section, “appropriate material” does not 11 include obscene material or hard-core pornography. 12 EXPLANATION 13 The inclusion of this explanation does not constitute agreement with 14 the explanation’s substance by the members of the general assembly. 15 This bill relates to the dissemination of certain specified 16 materials, including the prohibition of certain specified 17 materials in schools and civil actions to determine obscenity, 18 and modifying the responsibilities of the department of 19 education. 20 The bill requires a school to designate at least one 21 administrator to ensure that no obscene material or hard-core 22 pornography is present and available to students in a library 23 operated by the school, a school classroom, or any other area 24 on school property. 25 The bill prohibits an administrator or teacher from 26 knowingly providing obscene material to a student in a library 27 operated by the school, in a school classroom, or in any 28 other area on school property. The bill also prohibits an 29 administrator or teacher from knowingly providing hard-core 30 pornography to a student in a library operated by the school, 31 in a school classroom, or in any other area on school property. 32 Additionally, the bill prohibits a teacher from knowingly 33 requiring a student to read or view obscene material or 34 hard-core pornography as part of the teacher’s instructional 35 -9- LSB 1150YH (1) 90 jda/rh 9/ 13

H.F. 361 program or curriculum. The bill requires the board of 1 educational examiners (BOEE) to adopt rules that require the 2 BOEE to disqualify an applicant for a license or to revoke 3 a person’s license for a violation of these provisions. The 4 bill provides that if the administrator or teacher who violates 5 these provisions is a member of the board of directors of a 6 school district, the administrator’s or teacher’s membership 7 on the board shall be vacated. 8 The bill authorizes a parent or guardian of a student 9 alleging a violation of the bill’s provisions to bring a civil 10 action for damages or injunctive relief against the school that 11 employs an administrator or teacher in violation of the bill. 12 The bill requires a court to award reasonable attorney fees to 13 a parent or guardian who prevails in this civil action. 14 The bill provides that if a parent or guardian is the 15 prevailing party in the civil action, the court shall assess a 16 civil penalty against the school that employs the administrator 17 or teacher, not less than $5,000 plus an additional $500 per 18 day for each day a violation occurs during the pendency of the 19 civil action, unless certain limited exceptions apply. The 20 bill requires revenue from the civil penalty to be remitted 21 to the treasurer of state for deposit in the general fund of 22 the state. The bill provides that if the administrator’s or 23 teacher’s violation relates to obscene material, the court is 24 required to order the school to pay not less than $10,000 in 25 damages to the parent or guardian. The bill also provides 26 that if the administrator’s or teacher’s violation relates 27 to hard-core pornography, the court is required to order the 28 school to pay not less than $20,000 in damages to the parent or 29 guardian. 30 The bill provides that if a parent or guardian is the 31 prevailing party in the civil action, the clerk of court 32 shall send a copy of the court’s order and a copy of the law 33 by certified mail to the BOEE, the attorney general, and the 34 county attorney of the county in which the school that employs 35 -10- LSB 1150YH (1) 90 jda/rh 10/ 13

H.F. 361 the administrator or teacher who violated the bill’s provisions 1 is located. 2 The bill provides that a parent or guardian who was the 3 prevailing party in the civil action may bring a civil action 4 for damages against the school that employs the administrator 5 or teacher if the administrator or teacher violates the 6 injunction. The bill requires the clerk of court to send a 7 copy of the court’s order issued pursuant to the proceedings 8 related to the violation of the injunction, and a copy of the 9 law, by certified mail to the BOEE. The bill also provides 10 that if the parent or guardian is the prevailing party in these 11 proceedings, the court shall award the parent or guardian 12 actual damages for injuries resulting from the administrator’s 13 or teacher’s initial violation of the bill’s provisions and a 14 civil penalty not less than $20,000 plus an additional $1,000 15 per day for each day the administrator’s or teacher’s violation 16 of the injunction continues. The bill waives immunity for 17 charter schools and school districts in any cause of action 18 brought against those entities under the bill. The bill 19 requires the BOEE to suspend the license of an administrator 20 or a teacher upon the BOEE’s finding by a preponderance of 21 the evidence that the administrator or teacher violated an 22 injunction. 23 The bill requires the board of directors of each school 24 district, the authorities in charge of each accredited 25 nonpublic school, and the governing board of each charter 26 school to notify the department of education that the board of 27 directors, the authorities, or the governing board has removed 28 a book from a library operated by the school, a classroom, or 29 any area on school property because the board of directors, 30 the authorities, or the governing board determined that 31 the book constituted or contained hard-core pornography or 32 obscene material. The bill also requires the department to 33 develop and make available on the department’s internet site a 34 comprehensive list of all of these notifications and update the 35 -11- LSB 1150YH (1) 90 jda/rh 11/ 13

H.F. 361 list at least once each month. Additionally, the bill requires 1 a school to remove a book that is on the list maintained by 2 the department from any library operated by the school, a 3 classroom, or any area on school property. 4 The bill authorizes a county attorney or the attorney 5 general to institute criminal or civil actions to enforce 6 the provisions of the bill. The bill provides that a county 7 attorney’s or the attorney general’s receipt of a copy of a 8 court’s injunctive order provided by the clerk of court, along 9 with subsequent information that a violation of the bill’s 10 provisions is continuing to occur, shall constitute probable 11 cause that a violation of the bill’s criminal provisions has 12 occurred. 13 Current law authorizes a county attorney to institute a 14 civil proceeding to enjoin the dissemination or exhibition 15 of obscene material to minors when the county attorney has 16 reasonable cause to believe that any person is engaged or 17 plans to engage in the dissemination or exhibition of obscene 18 material within the county attorney’s county to minors. The 19 bill establishes that the attorney general may institute such 20 civil proceedings as well. 21 Current law provides that Code chapter 728 does not prohibit 22 the use of appropriate material for educational purposes in any 23 accredited school, public library, or educational program in 24 which the minor is participating, and does not prohibit the 25 attendance of minors at an exhibition or display of art works 26 or the use of any materials in any public library. The bill 27 provides that, for purposes of this provision, appropriate 28 material does not include obscene material or hard-core 29 pornography. 30 The bill prohibits the board of directors of a school 31 district, the authorities in charge of an accredited nonpublic 32 school, and the governing board of a charter school from using 33 any standards or guidance developed by the American library 34 association when determining whether to acquire a book for a 35 -12- LSB 1150YH (1) 90 jda/rh 12/ 13

H.F. 361 school library or remove a book from a school library. 1 The bill provides that the board of directors of a school 2 district, the authorities in charge of an accredited nonpublic 3 school, and the governing board of a charter school shall not 4 allow a student serving on any committee that determines, or 5 provides recommendations related to, whether a material in a 6 library operated by the school should be removed to view the 7 material being considered for removal if the material is being 8 considered for removal because it may constitute or contain 9 hard-core pornography or obscene material. 10 The bill contains definitions for “administrator”, 11 “hard-core pornography”, “provides”, “school”, “student”, and 12 “teacher”. 13 -13- LSB 1150YH (1) 90 jda/rh 13/ 13