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Guidance Document Change: The guidance document "Model Policies Concerning Instructional Materials with Sexually Explicit Content" was developed in conjunction with stakeholders in order to comply with SB656 (2022).
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7/14/22  7:14 pm
Commenter: Anonymous

Model Policies Concerning Instructional Materials with Sexually Explicit Content - SB 656

It's my belief that there's a missing component that needs to be discussed in this debate of what should children be allowed to read.  

The U.S. federal government and every state has strict laws against obscenity and child pornography. The Supreme Court has ruled in Reno v. ACLU (1997) that, “transmitting obscenity and child pornography, whether via the Internet or other means, is... illegal under federal law for both adults and juveniles.” Supreme Court Case Roth v. U.S. (1957) defined “obscene speech” as that being “utterly without redeeming social importance” in which “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Miller v. California (1973) established the standard and determined that obscene materials are not protected by the First Amendment in which a three-part test is applied to define obscenity - “appeals to the prurient interest”; “work depicts ... sexual conduct specifically defined by the applicable state law”; and “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

The intent of these federal laws, state laws, and Supreme Court case law is to protect children from inappropriate content. School systems are taking advantage of the loophole created by the Miller v. California Supreme Court case. All they have to do is claim the book or content has“serious literary value,” and, voi·la?, it’s in.

There you have it, even materials of the lowest common denominator are now kosher; all you have to do is slap a label on it as having “literary value.” Without the label, there are severe legal consequences.

Virginia Code has a chapter devoted to “Crimes Involving Morals and Decency,” and underneath it is Article 5 (28 sections) related to “Obscenity and Related Offenses.” But, of course, § 18.2- 383 delineates exceptions to these crimes to “(1) ... any library, school, or institution of higher education.”

Fairfax County Public School BoardDocs Regulation 3007.3, page 4, (4) states, "In grades 9 through 12, the committee may approve excerpts from TV-MA or R-rated programs,"  and then it lists the process that must be followed in order to receive parental permission.  

After reading the opinions of Supreme Court justices in the above- mentioned cases, among others, the dilemma is real - questions of whether obscenity laws belong in court (violation of the separation of powers; legislators need to write laws, not courts); difference of opinions as to what constitutes “obscenity”; the conflicting nature of the First Amendment and obscenity laws; the application of community norms; what constitutes “serious literary value”; and, of course, the perennial question of “Who decides?”

What we do know is that several Supreme Court cases and Virginia law affirm that parents have fundamental rights. Virginia code § 1-240.1. states, “A parent has a fundamental right to make decisions concerning the upbringing, education and care of the parent’s child.” It doesn’t get any clearer thanthis.

It's clear by now that the phrases “banned books,” “censorship” and/ or “First Amendment rights” are being thrown all over the place without the discussion of whether the materials really belong in schools.  The school system has to address the fact that but for laws protecting the obscenity and/or porn in many of these books, there would be criminal charges.   Children should be protected from being exposed to this material.  What's the purpose of G and PG-13 rated movies?  Maybe reading materials at schools should be rated.  In a future law, schools should not receive a "get out of jail" card for distributing works that clearly violate the intent or federal and state moral laws.  

CommentID: 122453