DAR File No. 43202

Education, Administration

Rule R277-474

School Instruction and Human Sexuality

Notice of Proposed Rule

(Amendment)

DAR File No.: 43202
Filed: 09/13/2018 03:52:36 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The amendments to Rule R277-474 reference the new local education agencies (LEA) responsibilities enumerated in statute, and makes conforming formatting and technical changes.

Summary of the rule or change:

This rule is being updated to reflect the minor changes required by H.B. 286 passed during the 2018 General Session, including the change of "human sexuality" to "sex education" and referencing the new LEA responsibilities enumerated in statute and makes conforming formatting and technical changes.

Statutory or constitutional authorization for this rule:

• Subsection 53G-10-402(3)
• Article X Section 3
• Subsection 53G-10-402(1)
• Subsection 53E-3-401(4)

Anticipated cost or savings to:

the state budget:

These rule changes are not expected to have material fiscal impact on state government revenues or expenditures because they provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board of Education (Board) policies. This rule is being updated to reflect the minor changes required by H.B. 286 (2018), including the change of "human sexuality" to "sex education" and referencing the new LEA responsibilities enumerated in statute.

local governments:

These rule changes are not expected to have any material impact on local governments' revenues or expenditures because they provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. This rule is being updated to reflect the minor changes required by H.B. 286 (2018), including the change of "human sexuality" to "sex education" and referencing the new LEA responsibilities enumerated in statute.

small businesses:

These rule changes are not expected to have any fiscal impact on small businesses' revenues or expenditures because they provides technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. This rule is being updated to reflect the minor changes required by H.B. 286 (2018), including the change of "human sexuality" to "sex education" and referencing the new LEA responsibilities enumerated in statute.

persons other than small businesses, businesses, or local governmental entities:

These rule changes are not expected to have any fiscal impacts on persons other than small businesses, businesses, or local government entities revenues or expenditures because they provide technical, conforming, and stylistic changes in accordance with the Rulewriting Manual for Utah and Board policies. This rule is being updated to reflect the minor changes required by H.B. 286 (2018), including the change of "human sexuality" to "sex education" and referencing the new LEA responsibilities enumerated in statute.

Compliance costs for affected persons:

There were no compliance costs for affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

There are 1,241 entities with a NAICS code 611110 (Elementary and Secondary Schools) operating in Utah according to a "Firm Find Data" search through Utah's Department of Workforce Services. Most of the entities in the list are schools including public schools, charter schools, and private schools. Of the 1,241 entities, there are 15 private businesses, all of which are small businesses (there are no non-small businesses with a NAICS code 611110). These rule changes have no material fiscal impact on LEAs and will not have a fiscal impact on non-small or small businesses. The Assistant Superintendent of Financial Operations at the Utah State Board of Education, Natalie Grange, has reviewed and approved this fiscal analysis.

Sydnee Dickson, State Superintendent

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Education
Administration
250 E 500 S
SALT LAKE CITY, UT 84111-3272

Direct questions regarding this rule to:

• Angela Stallings at the above address, by phone at 801-538-7550, by FAX at 801-538-7768, or by Internet E-mail at angie.stallings@schools.utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/31/2018

This rule may become effective on:

11/07/2018

Authorized by:

Angela Stallings, Deputy Superintendent of Policy

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2019	FY 2020	FY 2021
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non - Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non - Small Businesses

There are 1,241 entities with a NAICS code 611110 (Elementary and Secondary Schools) operating in Utah according to a "Firm Find Data" search through Utah's Department of Workforce Services. Most of the entities in the list are schools including public schools, charter schools, and private schools. Of the 1,241 entities, there are 15 private businesses, all of which are small businesses (there are no non-small businesses with a NAICS code 611110). These rule changes have no material fiscal impact on local education agencies and will not have a fiscal impact on non-small or small businesses.

 

The Assistant Superintendent of Financial Operations at the Utah State Board of Education, Natalie Grange, has reviewed and approved this fiscal analysis

 

 

R277. Education, Administration.

R277-474. School Instruction and [Human Sexuality]Sex Education.

R277-474-1. Authority and Purpose.

(1) This rule is authorized by:

(a) Utah Constitution, Article X, Section 3, which vests general control and supervision over public education in the Board;

(b) Subsections 53G-10-402(1) and (3), which direct the Board to adopt rules to allow local boards to adopt [human sexuality education]sex education materials or programs as described in this Rule R277-474 and provide [human sexuality]sex education instruction as provided in Section 53G-10-402; and

(c) Subsection 53E-3-401(4), which allows the Board to make rules to execute the Board's duties and responsibilities under the Utah Constitution and state law.

(2) The purpose of this rule is to provide:

(a) requirements for LEAs and individual educators to select instructional materials about [human sexuality]sex education and maturation;

(b) notice to parents of proposed [human sexuality]sex education and maturation discussions and instruction; and

(c) direction to public education employees regarding instruction and discussion of maturation and [human sexuality]sex education with students.

 

R277-474-2. Definitions.

(1) "Curriculum materials review committee" or "committee" means a curriculum materials review committee formed at the school district or charter school level as described in Section R277-474-5.

(2) "Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g" or "FERPA" means a federal law designed to protect the privacy of students' education records.

(3) "[Human sexuality]Sex education instruction or instructional programs" means any course, unit, class, activity or presentation that provides instruction or information to students as outlined under Section 53G-10-403(1)(b) about sexual abstinence, human sexuality, human reproduction, reproductive anatomy, physiology, pregnancy, marriage, childbirth, parenthood, contraception, or HIV/AIDS , [and ]other sexually transmitted diseases, and refusal skills.

(4) "Instructional materials commission" means the advisory commission authorized under Section 53E-4-402.

(5) "LEA" for purposes of this rule, includes the Utah Schools for the Deaf and the Blind.

(6) "Maturation education" means instruction and materials used to provide fifth or sixth grade students with age appropriate, medically accurate information regarding the physical and emotional changes associated with puberty, to assist in protecting students from abuse and to promote hygiene and good health practices.

(7) "Medically accurate" means verified or supported by a body of research conducted in compliance with scientific methods and published in journals that have received peer-review, where appropriate, and recognized as accurate and objective by professional organizations and agencies with expertise in the relevant field, such as the American Medical Association.

(8) "Parental notification form" means a form developed by the Superintendent and used exclusively by LEAs or public schools for parental notification of subject matter identified in this rule.

(9) "Professional development" means training in which Utah educators may participate to renew a license, receive information or training in a specific subject area, teach in another subject area or teach at another grade level.

(10) "Utah educator" means an individual such as an administrator, teacher, counselor, teacher's assistant, or coach, who is employed by a unit of the Utah public education system and who provides teaching or counseling to students.

(11) "Utah Professional Practices Advisory Commission or "[(]UPPAC[)]" means a Commission established under Section 53E-6-501 and designated to review allegations against educators and recommend action against educators' licenses to the Board.

 

R277-474-3. General Provisions.

(1) The following may not be taught in Utah public schools through the use of instructional materials, direct instruction, or online instruction:

(a) the intricacies of intercourse, sexual stimulation or erotic behavior;

(b) the advocacy of premarital or extramarital sexual activity; or

(c) the advocacy or encouragement of the use of contraceptive methods or devices.

(2) Educators are responsible to teach the values and information identified under Subsection 53G-10-402(1)(b).

(3) Utah educators shall follow all provisions of federal and state law including the parental notification and prior written parental consent requirements described in Sections 76-7-322 and 76-7-323 when teaching any aspect of [human sexuality]sex education.

(4) While [human sexuality]sex education instruction and related topics are most likely to take place in such courses as health education, health occupations, human biology, physiology, parenting, adult roles, psychology, sociology, child development, and biology, this [rule ]R277-474 applies to any course or class in which these topics are the focus of discussion.

 

R277-474-4. State Board of Education Responsibilities.

The Superintendent shall:

(1) develop and provide professional development and assistance with training for educators on law and rules specific to [human sexuality]sex education instruction and related issues.

(2) develop, for Board approval, a parental notification form and timelines for use by LEAs.

(3) establish a review process for [human sexuality]sex education instructional materials and programs using the instructional materials commission and requiring final Board approval of the instructional materials commission's recommendations.

(4) approve only medically accurate [human sexuality]sex education instruction programs.

(5) receive and track parent and community complaints and comments received from LEAs related to [human sexuality]sex education instructional materials and programs.

 

R277-474-5. LEA Responsibilities.

(1) An LEA shall require all newly hired or newly assigned Utah educators with responsibility for any aspect of [human sexuality]sex education instruction to attend professional development outlining the [human sexuality]sex education curriculum and the criteria for [human sexuality]sex education instruction in any courses offered in the public education system.

(2) An LEA governing board shall provide training consistent with Subsection R277-474-5(1) at least once during every three years of employment for Utah educators.

(3) An LEA governing board shall form a curriculum materials review committee at the school district or charter school level as described in Subsection (4).

(4)(a) An LEA governing board shall annually appoint and review members of the LEA's curriculum materials review committee on or before August 1.

(b) An LEA's curriculum materials review committee shall include parents, health professionals, school health educators, and administrators, with at least as many parents as school employees.

(c) The members of an LEA's committee shall:

(i) meet on a regular basis, as determined by the membership;

(ii) select officers; and

(iii) comply with Title 52, Chapter 4, Open and Public Meetings Act.

(5) An LEA's curriculum materials review committee shall:

(a) be organized consistent with Subsection R277-474-2(1);

(b) designate a chair and procedures; and

(c) review and approve all guest speakers and guest presenters and their respective materials relating to [human sexuality]sex education instruction in any course and maturation education prior to their presentation.

(6) The committee may not authorize the use of any [human sexuality]sex education instructional program or maturation education program not previously:

(a) approved by the Board;

(b) approved consistent with R277-474-6; or

(c) approved under Subsection 53G-10-402(1)(c)(ii).

(7) The district superintendent or charter school administrator shall report educators who willfully violate the provisions of this rule to the Utah Professional Practices Advisory Commission for investigation and possible discipline.

(8)(a) Students may not participate in [human sexuality]sex education instruction, maturation education, or other instructional programs without prior affirmative parent consent, as evidenced by a completed parental notification form, on file.

(b) An LEA shall obtain parental consent from a student's parent using the common parental notification form or a form that satisfies all criteria of the law and Board rules[,] and comply with timelines approved by the Board.

(9) The parental notification form shall:

(a) explain a parent's right to review proposed curriculum materials in a timely manner;

(b) request the parent's permission to instruct the parent's student in identified course material related to [human sexuality]sex education or maturation education;

(c) allow the parent to exempt the parent's student from attendance for a class period where identified course material related to [human sexuality]sex education instruction or maturation education is presented and discussed;

(d) be specific enough to give parents fair notice of topics to be covered;

(e) include a brief explanation of the topics and materials to be presented and provide a time, place and contact person for review of the identified curricular materials;

(f) be retained on file with affirmative parental consent for each student prior to the student's participation in discussion of issues protected under Section 53G-10-402; and

(g) be maintained at the student's school for a reasonable period of time.

(10) An LEA shall develop a logging and tracking system of parental and community complaints and comments resulting from student participation in [human sexuality]sex education instruction, to include the disposition of the complaints, and provide that information to the Superintendent upon request.

(11) If a student is exempted from course material required by the Board-approved Core Standards consistent with S[ubs]ection[s] 53G-10-205(1), (2) and (3), the school shall:

(a) waive the participation requirement; or

(b) provide a reasonable alternative to the requirement.

 

R277-474-6. Local School Board or Charter School Governing Board Adoption of [Human Sexuality Education]Sex Education and Maturation Education Instructional Materials.

(1) An LEA governing board may adopt the LEA's instructional materials if the instructional materials meet the requirements of Subsection 53G-10-402.

(2) Instructional materials adopted as described in Subsection (1) shall:

(a) comply with the criteria of Subsection 53G-10-402(1)(c)(iii) and:

(b) be medically accurate;

(c) be approved by a majority vote of the LEA governing board present at a public meeting of the LEA governing board;[and]

(d) be available for reasonable review opportunities to residents of the school district or parents of charter school students prior to consideration for adoption[.]; and

(e) comply with the county data review requirements as outlined in Subsection 53G-10-402(8).

(3) An LEA shall comply with the reporting requirement s of Subsection 53G-10-402(1)(c)(iii)(D).

(4) A report to the Board shall include:

(a) a copy of [human sexuality]sex education instructional materials or maturation education materials not approved by the Instructional Materials Commission that the local board or local charter board seeks to adopt;

(b) documentation of the materials' adoption in a public board meeting;

(c) documentation that the materials or program meets the medically accurate criteria as defined in Subsection R277-474-2(7);

(d) documentation of the recommendation of the materials by the committee; and

(e) a statement of the local board's or local charter board's rationale for selecting materials not approved by the instructional materials commission.

(5) An LEA governing board's adoption process for [human sexuality]sex education instructional materials and maturation education materials shall include a process for annual review of the LEA governing board's decision.

 

R277-474-7. Utah Educator Responsibilities.

(1) Utah educators shall participate in training provided under Subsections R277-474-5(1) and (2).

(2) Utah educators shall use the common parental notification form or a form approved by the educator's LEA, and follow timelines approved by the Board.

(3) Utah educators shall individually record parent and community complaints, comments, and the educators' responses regarding [human sexuality]sex education instructional programs.

(4) Utah educators may respond to spontaneous student questions for the purposes of providing accurate data or correcting inaccurate or misleading information or comments made by students in class regarding [human sexuality]sex education.

 

KEY: health education, [human sexuality education]sex education, schools

Date of Enactment or Last Substantive Amendment: [November 7, 2017]2018

Notice of Continuation: September 13, 2017

Authorizing, and Implemented or Interpreted Law: Art X Sec 3; 53G-10-402(1) and (3); 53E-3-401(4)