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February 24, 2016

Virginia Senate Committee on Education and Health
General Assembly Building, Room 621
Capitol Square
Richmond, VA 23219
Via Email

Dear Members of the Virginia Senate Committee on Education and Health,

As organizations concerned with the freedom to read, the integrity of the public education
system, and the application of First Amendment law and principles in public institutions, we
strongly urge you to vote against HB516, a bill requiring public schools to notify parents of any
sexually explicit content in instructional materials and to provide nonexplicit material and
related academic activities to any student whose parent so requests. We believe that such
legislation would invite divisive challenges to educationally valuable material, interfere with
teachers ability to teach effectively, and implicitly encourage schools to avoid such material
simply because it might elicit objections. The result would be to undermine the quality of public
education in Virginia and possibly to expose school districts to liability for violating the First
Amendment.
Instructional materials are selected for a number of reasons, including but not limited to their
suitability to a given course of study, their literary or educational merit, and their ability to
connect instruction to human experience in a broader sense. Singling out books and other works
with a certain type of content for parental notification inevitably creates a biased perspective
and casts a negative light on the material regardless of its educational value.
By singling out sexually explicit content in particular, the bill relies on a standard that is both
over-inclusive and vague. As defined by the Code of Virginia, such content includes, among
many other things, any description of physical contact in an act of apparent sexual stimulation
(18.2-390). Under this standard, titles as varied, valuable, and time-honored as Anne Franks
The Diary of a Young Girl, Geoffrey Chaucers The Canterbury Tales, and most works by
William Shakespeare could be flagged for sexually explicit content. Thus, HB516 is likely to
generate continuing controversy; it takes only one person to file a challenge and launch a
protracted battle that can disrupt an entire school system and divide a community.
Teacher-moderated classroom discussion is crucial to cultivating the academic, social, and civic
skills of public speaking, active listening, and respectful engagement with differing points of
view. The importance of classroom communication, speaking, and listening is reflected in the
English, History and Social Science Standards of Learning for Virginia Public Schools. By
inviting parents to opt out of particular assignments, HB516 raises the potential for multiple

different assigned materials in a single classroom, impeding teachers' efforts to foster discussion while
imposing on them an unnecessary administrative burden.
There are predictable consequences for all students if schools attempted to accommodate multiple possibly
conflicting viewpoints by providing alternative assignments: . . . due to the practical burdens, schools would
be unlikely to choose to teach alternate works separately to students objecting to a portion of the curriculum.
Instead, they would probably simply remove books that they believed to be educationally valuable, but that
might be controversial, or offensive to some. Monteiro v.Tempe Union School District (9th Cir. 1998).
Finally, HB516 invites confusion about the constitutional obligations of public school officials, who are
prohibited from discriminating against the expression of an idea simply because society finds the idea itself
offensive or disagreeable. Texas v. Johnson, 491 U.S. 397, 414 (1989). If the proposed legislation results in
the removal of material solely to satisfy those who object to its content, it could inadvertently expose school
districts to liability for violating the First Amendment. See Monteiro v. Tempe Union High School District,
158 F. 3d 1022, 1028 (9th Cir. 1998), rejecting a challenge to books based on racial content, and recognizing
the First Amendment right of students to read books selected for their legitimate educational value.
This legislation distracts from a comprehensive, quality education for students in the state of Virginia. Schools
would do better to foster trust between parents and educators and emphasize that all parties are doing their best
to promote high quality education. Focusing on the educational criteria for curricular selections would provide
a meaningful, sound, and defensible way to evaluate material and serve the educational needs of all students.
On the basis of these constitutional and educational concerns, we strongly urge you to vote against HB516.
Sincerely,

Svetlana Mintcheva, Director of Programs

National Coalition Against Censorship

Millie Davis, Director

Intellectual Freedom Center
National Council of Teachers of English

Chris Finan, Director

American Booksellers for Free Expression

Charles Brownstein, Executive Director

Comic Book Legal Defense Fund

Fatima Shaik, Chair

Childrens and Young Adult Book Committee
PEN American Center