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Obscenity Bill in Kansas Could Expose Educators to Prosecution

Bill would remove obscenity liability exceptions in Kansas law; critics say measure would have a chilling effect
Obscenity Bill in Kansas Could Expose Educators to Prosecution
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Mar 22, 2008 10:00 AM PDT    Text size: 
TOPEKA, Kan. — A new measure being considered by the state legislature would remove educator exemptions from Kansas’ obscenity laws and require teachers there to receive approval from their local school board to use any teaching materials that could be considered legally obscene.

The state’s current obscenity law holds that it is a “defense to a prosecution for obscenity” if the allegedly obscene material was “purchased, leased or otherwise acquired by a public, private or parochial school, college or university, and that such material was either sold, leased, distributed or disseminated by a teacher, instructor, professor or other faculty member or administrator of such school as part of or incident to an approved course or program of instruction at such school.”

An amendment to Senate Bill 492 (SB492) proposed by Sen. Karin Brownlee, R-Olathe, would introduce new language to existing state law that “a teacher shall not read, use or display in a school any material for which an affirmative defense to prosecution may be asserted” under the state’s law prohibiting the promotion of obscenity, unless “such use, reading or display has been approved by the board of education of the school district in which such school is located.”

The original purpose of SB492 was to change state law to allow a person convicted of a misdemeanor driving under the influence charge to obtain a teaching license in Kansas, something which is currently prohibited in the state. Brownlee’s amendment introduced the language concerning the display of possibly obscene materials, and would hold school principles responsible for allowing teachers to use materials not approved by the school board.

In support of her measure, Brownlee has cited a 2005 controversy in the Blue Valley School District as evidence of need for the new law. That controversy involved a petition signed by approximately 500 residents in the Blue Valley district who demanded the removal of 14 “vulgar” novels from the district’s high school reading list. The offending novels reportedly included Toni Morrison’s “Beloved” and Cormac McCarthy’s “All the Pretty Horses.”

Brownlee has said that she recognizes that not everyone will agree on what constitutes “obscene” literature or viewing material, but asserted that Kansas residents have a right to their own standard.

“What’s acceptable in San Francisco may not be in Kansas,” Brownlee recently said during testimony before the House Education Committee. “Let the school board set the community standard.”

Jeffrey Douglas, chairman of the Free Speech Coalition (FSC), told XBIZ that Brownlee’s bill is “entirely unnecessary,” and added that it is very hard to imagine that any teacher would display material in a classroom that would it would be possible to successfully prosecute as legally obscene.

The state’s legal definition of obscenity is virtually identical to the Miller test, which defines the federal obscenity standard. Under Kansas law, material or performances are deemed to be obscene if “[t]he average person applying contemporary community standards would find that the material or performance, taken as a whole, appeals to the prurient interest; the average person applying contemporary community standards would find that the material or performance has patently offensive representations or descriptions of … ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse or sodomy, or … masturbation, excretory functions, sadomasochistic abuse or lewd exhibition of the genitals; and taken as a whole, a reasonable person would find that the material or performance lacks serious literary, educational, artistic, political or scientific value.”

Douglas noted that however unlikely it is that any book or other teaching material used by teachers could successfully prosecuted as obscene, the language of Brownlee’s amendment can be interpreted to apply to any book that could be accused of being obscene, regardless of the prospects for a successful obscenity prosecution.

If the bill were to pass in its current form, the result would be a “chilling effect” that trickled down from the school board and into the classroom, Douglas said. Out of fear of upsetting parents in their district, school boards could be reticent to approve any remotely sexually explicit materials to be used in the classroom, thereby reducing the scope of both literature and sex education materials for teachers to use.

Douglas said he thinks the bill is most likely a political maneuver, and not an attempt to address an actual pressing need to curb the display of allegedly obscene materials in the state’s classrooms. He also predicted that the bill would never make it to Governor Kathleen Sebelius for her signature.

“These kinds of laws aren’t created to address a problem, but to create the impression that there is a problem in the first place,” Douglas said. “It is unfortunate but commonplace for legislators in one branch to suggest bills that they know will never pass the other [branch]. Doing this creates the appearance that they are doing something proactive, and leaves the responsibility for the measure being rejected on somebody else.”

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