Regulation that took effect automatically over the summer bans ‘sexual conduct’ in education materials
By Abraham Kenmore
SCDailyGazette.com
COLUMBIA — Uncertainty over new rules requiring age-appropriate materials in South Carolina’s public schools is raising some peculiar questions. For example: Does a book for primary grades referencing elephant poop count as banned “sexual conduct”?
That was a question Patrick Kelly with the Palmetto State Teachers Association got during a meeting with school employees in the last week of August.
Another question he recently received came in an email from a high school social studies teacher in Richland Two, where Kelly also works in suburban Columbia: Could he use a picture of Michelangelo’s famous nude statue of David when discussing Renaissance art?
Sexual conduct as defined in the state obscenity code includes a broad range of graphic examples. Also on the list are “excretory functions, or lewd exhibition … of the genitals.”
“I would argue that Michelangelo’s David is not a ‘lewd exhibition,’ but it is certainly an exhibition of genitalia,” Kelly said of the statue in Florence, Italy. “That’s a gray area for a teacher because now a teacher is having to define what does ‘lewd’ mean.”
An attorney with the state Department of Education called the regulation clear and straightforward.
But educators argue it’s the opposite. They say the vague language is making it harder for teachers and librarians to do their job.
During a state Board of Education meeting last month, Kelly asked during the public comment period for additional guidance.
The regulation bars books and other instructional materials that describe “sexual conduct” and creates a statewide system for parents to challenge books they think violate the rules, with an appeals process that gives the State Board of Education final say. Parents must have a child in the district to complain and must first talk with school- or district-level staff for a potential resolution before escalating their concerns.
“Sexual conduct” is not defined in the regulation. Rather, it points to the portion of the state’s obscenity law that lists sexual activities. Books and other classroom materials that describe or depict what’s on that list are barred.
As the proposal moved through state House committees in the spring, Miles Coleman, an attorney contracted by the Department of Education, said any changes — for example, adding the word “explicit” — would make the regulation less clear.
“No, it is not clear at all, and the evidence for my answer lies in all of the confusion and chaos that’s happening right now,” Jamie Gregory, president of the South Carolina Association of School Librarians, told the S.C. Daily Gazette last week.
Jason Raven, spokesman for the Department of Education, said the agency is answering questions as they come up from districts. But it’s not planning to release any more general guidance.
David O’Shields, chair of the state Board of Education, which adopted the regulation, told the S.C. Daily Gazette on Monday he’s personally open to providing clarification. He said it should be clear that the ban is on explicit or graphic sexual content, seemingly indicating he’s willing to add the words Kelly’s repeatedly suggested (so far) unsuccessfully.
“We just wanted it to be in its purest intention graphic sexuality,” said O’Shields, superintendent of Laurens County 56 (Clinton), stressing that he was speaking for himself, not the board as a whole.
The regulation is not the Legislature’s creation. By state law, textbook regulations are the board’s responsibility. Indeed, the rules took effect over the summer without the Legislature’s blessing.
After the Board of Education approved it in February, the regulation moved to the General Assembly for review. It advanced through a House committee, but that’s as far as it got. The rules never received a vote on the House floor, and senators never even had a hearing before the session ended.
Yet it took effect automatically, to the surprise of even some GOP leaders.
The result has been confusion.
Greenville, the largest school district in the state, grabbed headlines when it paused book fairs for the year, citing the regulation. That decision brought numerous complaints at last week’s Board of Education meeting.
Kelly said Greenville also required all teachers to list all the instructional materials they planned to use for the entire school year just a week after classes started.
He shared a quote from a Greenville teacher’s email with the Gazette, saying that teachers were told “every book, resource, DVD, magazine, PowerPoint …. that students ‘could’ possibly access in our classroom” had to be cataloged by Aug. 16.
In response, the state’s largest school district contends that is not the policy, and that teachers misunderstood.
Greenville requires teachers to keep track of all the materials they use but does not require a proactive list for the entire year, Tim Waller, district director of media relations, told the Gazette.
Keeping a list of materials is the district’s only new rule due to the regulation, he said, and no parents have asked to view those lists yet.
Kelly said he’s relieved Greenville is not requiring a full listing at the beginning of the year. But he also says that policy change was not communicated well to teachers.
As for the book fairs, Waller said the district is just pausing them for a review.
He said the initial concern came from library employees who worried they didn’t have time to review every book offered for sale ahead of time and did not want to accidentally violate the regulation.
“The concerns that led to us pausing our books fairs were to protect our employees,” Waller said.
In an Aug. 22 statement on the book fair pause, the Department of Education commended the district “on its vigilance.”
Last week, its spokesman stressed to the Gazette that there’s nothing in the regulation to “prohibit or discourage” book fairs and no other district has done so. The agency is working with Greenville officials on future fairs, Raven said.
Waller said the district is trying to find a book vendor that can provide assurances the regulation is met, so librarians don’t have to try to read or scan every book being sold before the shelves open.
The Department of Education sent out two memos over the summer on the regulation — one listing the new obligations of districts, the other with a reminder of the obligations and a link to new forms. One is three pages long, the other is two pages.
“The Department has continued to field questions from school districts, board members and has provided guidance accordingly,” Raven wrote. “Our staff is dedicated to offering ongoing support and guidance as requested.”
No appeals on newly banned materials have reached the state, according to Raven.
But those memos don’t provide any clarity, educators and others say.
“Despite the repeated assurances this is logistically feasible, it seems like it has been chaotic across the state and every district seems to be interpreting and implementing it different,” said Josh Malkin, an attorney with the South Carolina American Civil Liberties Union, which opposed the regulation.
Gregory, the president of the school librarians’ association, said she understands why districts are passing restrictive policies to protect employees from being brought before the state Board of Education. Some districts are going overboard, though, she said — beyond anything the regulation requires.
“Let’s just deal with the regulation and not make it something that it isn’t, especially in light of the fact that there has been no guidance whatsoever from the state,” she said.
Gregory, who is a librarian at a private school in Greenville, said she bought maybe 1,000 books last year. Reading all of them to confirm there is nothing that breaks the regulation would be impossible.
“If there’s even one word in the book that violates the regulation, it has to be taken out,” she said.
Although she did not want to name specific districts in order to keep member’s information private, Gregory said that some librarians are suspending buying any new books.
“When people tell you, ‘I’m afraid to order books for my school,’ that is a huge problem,” she said.
Gregory would like to see clear definitions of all the terms in the regulation and clearly defined consequences for failing to comply. She also wants an exception that allows for material that might include sexual material but have literary merit — especially for high school students, she said.
Kelly said he wants the regulation to specify it’s banning only explicit or graphic sexual content. It’s a request he made last spring as he told legislators the rule as written could apply to the Bible or plays written by William Shakespeare.
Both Gregory and Kelly said that if parents are concerned about what their children are using, they should start by talking to librarians and teachers. That, at least, is what the regulation says.
“Contact your school librarian if you have a question. We always build relationships with the parents and the teachers and the community members,” Gregory said. “We welcome that. It’s part of our job.”
S.C. Daily Gazette reporter Skylar Laird contributed to this report.
Abraham Kenmore is a reporter covering elections, health care and more. He joins the S.C. Daily Gazette from The Augusta Chronicle, where he reported on Georgia legislators, military and housing issues. S.C. Daily Gazette is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
