New rules on ‘age appropriate’ books in SC classrooms are to be approved automatically

COLUMBIA — An age-appropriate books in South Carolina schools ordinance that was widely considered obsolete this year will go into effect next month unless an overwhelming majority of lawmakers agree to block it.

Proposed rules governing what is “age and developmentally appropriate” for elementary and middle school classrooms and libraries were never brought to a vote in either the House or Senate before the end of the regular session on May 9.

But they are scheduled to be approved on June 25 anyway – 120 days after the State Board of Education submits them for legislative review. According to the law, the period during which legislators can consider them – approve or reject them – expires.

But the automatic approval surprised even GOP legislative leaders. Some were outraged when they learned about it at the end of the session – if only because the regulation slipped through by obvious accident.

Such a significant regulation that bypasses legislative review is a problem, Senate Majority Leader Shane Massey told the SC Daily Gazette on Thursday.

“I’d rather they didn’t pass. “I would rather see any type of regulation reviewed by the Legislature before it goes into effect,” the Edgefield Republican said. “This is even more so when there is significant and impactful regulation. We spend a lot of time in the Senate reviewing legislation that, for the most part, doesn’t really matter.

“It will make a difference,” he said.

The problem of ambiguity

The ordinance bans books describing “sexual conduct” and creates a statewide system for parents to challenge books they believe violate the rules through an appeals process in which the State Board of Education has the final say. Parents must have their child in the district to file a complaint and must first speak with school or district staff to find a potential resolution before escalating their concerns.

The problem, teachers say, is that the definition of what is inappropriate is so broad that it even includes “Scarlett’s List,” William Shakespeare’s classic and the Bible, which can be removed from classrooms.

The ordinance ties this definition to the state’s obscenity law, but only to the section of the code that mentions sexual activity. Books and other school materials that describe or depict items on this list are prohibited.

During a House hearing, an attorney for the state Department of Education said the rationale for the language was to eliminate confusion.

In fact, it does the opposite, creating a “vague, unenforceable standard,” said Patrick Kelly, a lobbyist for the Palmetto State Teachers Association.

“The Bible speaks of two people becoming one flesh. It’s a description of sexual intercourse,” he said.

In fact, he credits the State Board of Education with fixing most of his group’s problems in the proposed regulation before it was submitted to the Legislature. But the definition’s vagueness could “overwhelm the local school board with trivial challenges,” he said.

The regulation limits the number of complaints but still allows for a maximum of five complaints per month against a parent. That’s a lot for someone who might have a political agenda, he said.

“I worry that this will have a chilling effect on teachers. If I’m a teacher and I’m considering assigning A Midsummer Night’s Dream (Shakespeare) to me, am I worried that it’s violating a vague prohibition? asked Kelly, also a high school teacher of government Advanced Placement courses.

It’s an easy solution, he said. A possible solution would be to simply add the word “explicit” to the definition.

After all, it would fit State Superintendent Ellen Weaver’s stated goal.

In a March email to teachers, Weaver tried to allay their concerns.

“I want to emphasize that the heart and purpose of this regulation is to create certainty by providing consistency and clarity for both parents and educators,” she wrote. “I am confident that this uniform process to eliminate the possibility of sexually explicit content being provided to children… will ultimately help lower the temperature and foster trust and partnership between parents and our public schools.”

Kelly said he agrees with its purpose, but “the problem is that the regulation doesn’t say ‘explicitly.’

“They were so close to making a pretty strong product — it just needed a little more time and a little more thought,” he said. “If only they could come back in January and toughen up their language.”

Floating expiration date

That’s exactly what Senate Education Chairman Greg Hembree expected.

“We all operated under the belief that this would pass,” the Little River Republican told the SC Daily Gazette.

The Hembree Committee did not address this at all. He said he proposed an out-of-session meeting with Weaver and House Education Chair Shannon Erickson to “try to refine” the regulation before presenting it to senators in January.

In its original version, the regulation indicated that lawmakers had until March 2025 to reject or approve it. It was assumed – incorrectly as it turned out – that the normal 120-day window would not apply after the end of the regular session.

And then someone — it’s unclear to the Gazette who — realized that the rules governing adjournments were missing language to stop the clock.

Republican senators attribute this to an apparent oversight in writing this resolution combined with ignorance of the process. Hembree, who is in his sixth year as education chairman, acknowledged that regulations are not something his committee usually deals with, and certainly not this controversial.

On May 13, four days after the end of the regular session, the schedule for work on the regulation was changed. Instead of setting an expiration date of March 1, 2025, it listed June 25, 2024 as the automatic approval date.

Conscious teachers are concerned, said Sherry East, president of the South Carolina Education Association.

“We have received calls from teachers asking how this will affect their teaching next year, but we don’t have answers for them,” said East, who is also a science teacher at Rock Hill High School. “We are currently on expectant surgery.”

Rep. Spencer Wetmore, a member of the House panel that held the only legislative hearing on the regulation, stated that most people certainly had no idea the regulation would be passed: How could they?

This is happening “in the most opaque way possible,” the Folly Beach Democrat said.

The regulation was touted as something that wouldn’t ban the average book, but if school boards need to apply this “bright rule” about what is considered age-inappropriate, then classics like George Orwell’s 1984 (published in 1949 r.) and Ayn Rand’s “1943” novel “The Fountainhead” “will and should be banned,” Wetmore said.

“I don’t know if Genesis and Leviticus can handle it,” she said, referring to the biblical books of the Old Testament. “It will take effect and people who are inclined to question the book will know it and librarians will not.”

There are several possible ways the legislature could still prevent the regulation from automatically coming into force, all of which require majority approval before June 25. So the chances of any of them occurring may be slim.

The state Department of Education could also develop the regulation itself and resubmit it in January. But this is not expected to happen. An agency spokesman could not be reached on Friday.

“I’m not going to stand in the way” of blocking the regulation’s approval date if that’s what Senate Republicans want, Hembree said.

But it could be an uphill battle, an ordeal that he compared to throwing a grenade at what lawmakers still need to achieve, most importantly finalizing the state budget.

He said he is confident the Department of Education will send out guidance in the summer, answering questions and addressing concerns.

And if the regulation does cause problems, he said, lawmakers will fix it when they return in January by introducing a bill to replace the agency’s regulation.

“If it has a fatal flaw that shows up by January, we will fix it,” Hembree said. “Instead of blowing up and causing more stress (in the coming weeks), let’s just let it be.”

He told teachers: “I wouldn’t panic. I don’t think there’s anything to worry about.”