by Deborah Hommer
Parents all across the United States parents are discovering shocking reading materials in their school libraries and classrooms. We’re not talking about “Lady Chatterly’s Lover.” To give one particularly horrendous example, we’re talking graphic novels depicting fellatio and pedophilia. Many parents are asking, How can this be?
The U.S. federal government and every state has strict laws against obscenity and child pornography. In Reno v. ACLU (1997), the U.S. Supreme Court has ruled 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 when in, a three-part test, they “appeal to the prurient interest,” “depicts … sexual conduct specifically defined by the applicable state law,” and “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. How, then does pornography get in our schools? Well, 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, voilà, 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.”
The Virginia General Assembly passed bills in 2016 (HB 516) and 2017 (HB 2191) that would have required the Board of Education to write a policy on notification to parents of sexually explicit instructional material, give parents an opportunity to review the material, and find alternative reading materials if parental approval is not provided. The bill passed two years in a row with bipartisan support, only to be vetoed by then Governor Terry McAuliffe both years claiming essentially that he is trusting the schools with the “appropriate literary and artistic works.”
Here’s another head scratcher: On FCPS 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. The following additional guidelines shall be followed.” Section (a) requires “Local School Approval”; “(b) Written notification to parents …”; and “(c) Written permission must be received from students’ parents before viewing.” So, there is no parental permission required from parents for their children reading essentially what are R-rated books, but there is for movies?
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, not courts, need to write laws); 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 than this.
Questions for those who are decrying “banned books,” “censorship” and/or “First Amendment rights”: Who decides? Parents who have the fundamental rights or the schools?
News flash: The laws as evidenced in Supreme Court cases, state court cases, and state laws assert parental rights. Are there any books children should be protected from being exposed to? What’s the purpose of G and PG-13 rated movies? Should reading materials at schools be rated? Should schools get loopholes on materials that clearly violate Supreme Court case law, federal laws, and state laws?
It’s time to have some serious discussions regarding the required reading materials in school English classes, in libraries, and whether they should be rated; the built-in loopholes to getting obscenity/pornography in front of students; the lack of parental involvement; and the difference of opinion of what is or is not “serious literary value.”
Deborah Hommer resides in Fairfax County. She is founder, 501(c)(3) Constitutional Reflections (Website under construction).
