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Dear Brian:

I am back in Raleigh today and have access to my extensive notes regarding SB 49.  I have been working for months to strengthen the bill that the Senate created.  Together with another colleague and with NC Values Coalition input, we developed a significant number of amendments to strengthen the bill in crucial respects.  Unfortunately, because of a deal struck by others with the Senate leadership, it was agreed by them that the House would accept the Senate bill in the form the Senate wanted.  As a result, I was unable to get any amendments voted on.  So, as I indicated earlier, I felt the bill was too weak and failed to give parents the full range of rights they should have.  I also was convinced it failed to include effective remedies if parents’ rights were not honored.  It is often times challenging as a legislator to decide when to vote for something that sounds good and is not necessarily all bad and when to vote against something because you believe it can be significantly better.  If I simply go along to do the seemingly popular thing, I then have to worry that I am sending others in leadership a signal that my position was not really strongly or seriously held.  In this instance, I decided it was important to “signal” I was serious and hope that it might prove beneficial either on some future vote or in getting “corrective” legislation separately that was not included in SB 49 as it went to the governor.  Indeed, I am late in the day today in sending this email because I have been mostly engaged in negotiations to try to get such “corrective” provisions into another bill that may be considered tomorrow.

Having said the above, I do want to make clear that I have always intended, and continue to do so, to vote for overriding the governor’s veto.  My vote was not needed for passage initially, so I felt free to indicate my disappointment with the shortcomings of the bill.  However, it was a foregone conclusion that Gov. Cooper would veto the bill and I knew when it came back I would vote for the override.  Indeed, by doing so, I hope it may possibly strengthen my hand in arguing for the corrections or improvements I’d like to see made through separate legislation.  It was never my intention to stop the bill from ultimately becoming law but only to try to strengthen parents’ rights in ways that I believe SB 49 falls significantly short.

In any event, here are some of the most significant concerns I had that led me to vote against the bill:

  1. 1.  Obscenity in Schools and School Libraries
  2. 49 fails to address one of the most offensive violations of parental rights.  The Pavement Education Project, a non-profit organization devoted to rooting out obscenity in school libraries, has gone into 18 counties and discovered dozens of obscene books in public middle and high schools.

Here is just one example of what is in North Carolina schools:

All Boys Arent Blue has been found on the library shelves in Asheville City Schools, Buncombe County Schools, Chapel Hill-Carrboro City Schools, Chatham County Schools, Guilford County Schools, New Hanover County Schools, Wake County Schools, Wilson County Schools.

 All Boys Arent Blue has been described as a “graphic description of the author’s initiation into homosexual sex.” In raw details the book describes the author’s anal and oral sex with his cousin and masturbation.

 Read the excerpts:

  1. 2.Civil Penalties
  2. 49 lacks meaningful penalties for non-compliance.
  • If a parent requests information from the school, there is a process in place but if the school doesn’t comply, the parent is statutorily barred from seeking recourse in the courts.
  • If a parent has concerns about what is being taught in the classroom, the only cause of action for a parent is to seek injunctive relief.  This limited relief constitutes very little restraint on a school board intent on pursuing its own agenda.
  • If a healthcare practitioner provides, solicits or arranges treatment for a minor without obtaining parental consent, the only consequence is that the health care practitioner “is subject to disciplinary action by his/her licensing board.  There is no required penalty.

As reported in the North State Journal on June 28,, some teachers are already saying they won’t comply with the law.  Parents need a private cause of action against the school system with successful parents able to recover the costs, attorney’s fees and a $5,000 minimum for damages.

  1. Repository and posting of materials and text titles on the school website
  2. 49 does not ensure curricula and content transparency for parents.  S. 49 does require schools to establish a policy for a parent to review materials and texts and the policy must be available for in-person review and on the website.  However, establishing a repository and posting titles and materials on the school website, as our amendments would have provided, will ensure easy and, therefore, effective access of materials for parental review.

  1. Eliminate Instruction of Gender Identity
  2. 49 allows instruction and discussion on gender identity beginning in the fifth grade.  That, I believe, is years before it is an issue with most children. These types of discussions should be between a parent and child, not a subject for classroom instruction and the prohibition on instruction should be through the 12 grade.

Here are some more points at issue with SB 49 as it currently stands:

  • It fails to a “strict scrutiny” standard to most effectively protect parents’ rights versus a school board or other state agency in the event that a court is called upon to determine what may or may not violate the parents’ rights
  • It does not provide that parents have a cause of action or an affirmative defense to assert in court under the bill
  • It does not prohibit local governments from enacting ordinances to try to diminish the ability of parents to assert their rights in their home communities
  • It does not contain any required penalties against school superintendents whose system is found to violate parents’ rights on multiple occasions.  Our amendment would have allowed for withholding state pay or termination of contract where a superintendent’s system was found guilty of at least five such violations.
  • It failed to give parents the right to consent to their student’s participation in clubs and activities, such as book fairs, to which the parent might object
  • It prohibit parents from going to court to obtain review of a local decision on their request for information.  Instead, SB 49 leaves entirely up to the local school board
  • It doesn’t require that consent by parents for health care services be in writing
  • It only requires prior consent for K-3 health screening and student well-being questionnaires, rather that requiring prior, written consent in all grades
  • It doesn’t require use of sex from birth certificate (with exception for court orders or federal law) but only provides that parents be notified of use of different pronouns
  • It allows schools to withhold student records and information if the school determines on its own that sharing the information with parents might lead to parent abuse or neglect.  However, it includes no requirement that the suspected abuse or neglect be reported so it can be checked out.  Instead, parents are simply “convicted” by school personnel acting unilaterally and with no substantial parent recourse
  • It prohibits instruction on gender-identity, sexual activity and sexuality only through 4th grade.  I believe the prohibition should extend at least through 6th grade.
  • It fails to limit the use of so-called “protected” information surveys.  It does provide for parental “opt-in” to such surveys.  I believe such shouldn’t be used in our schools.  Our proposal was to limit such to only the CDC youth behavioral survey to which parents would still need to “opt-in”.
  • It fails to provide parents with substantial advance notice and the right to opt-out of study on human growth and development in 4th/5th grade and fails to require that such instruction when given be in single-sex classroom settings
  • It fails to provide parents with substantial advance notice and the right to opt-out of study on reproductive health and safety in 7th grade and up
  • It fails to provide a public hearing and opportunity for parents to review selection of health and safety instructional and supplemental materials prior to their adoption for use
  • If contains no requirement for posting at the beginning of the school year at least a syllabus of what instruction in a class will include
  • It fails to revise or strengthen the right of parents in the selection process for school materials and library books
  • It fails to specify that a parent’s choice to raise a child in a manner consistent with the child’s sex at birth cannot be characterized as either abuse or neglect
  • It does not change current law that essentially says that all school personnel, libraries, government agencies, medical clinics and museums are protected automatically by virtue of their employment from being charged with disseminating harmful materials to minors
  • It does not include specific provision for a legal cause of action for failure to obtain parental consent for medical treatment.  In addition, it leave in place one of the most liberal laws in the nation that provides in NC that any minor, of any age, can be treated by medical personnel without any consent from or notice to parents in the case of STDs, pregnancy, addiction and emotional or mental disturbance.  You can perhaps imagine the types of issues that some medical personnel might choose to treat  through the provision dealing with emotional or mental disturbance.
  • It fails to address parents’ right with respect to public libraries.  There is no requirement that public libraries restrict materials harmful to minors by making it inaccessible to them.  Nor is there a requirement for parent consent for the library to check out books to a minor.  Nor is their provision allowing parents to access their child’s library records to know what sort of materials the child may be using.

When I voted no on SB 49, I understood that there would likely be those who misunderstood.  I am glad you let me know of the concerns you have or have encountered with others.   I suspect that there is no stronger supporter than I of parents’ rights in the legislature.  Among other work, I am the lead sponsor of the vetoed bill that would prohibit transitioning surgeries, puberty blockers and cross-sex hormones for minors.  I have a substantial conservative record if that record is examined.  I am glad to meet at home with you, a group or with others who may wish to discuss this further.  As I said earlier, I am still working to add many of the stronger provisions in some way to other bills that we may yet pass this session.  If we don’t get it done this year, I will continue the effort next year.  Finally, I will add that I believe that the folks at NC Values Coalition will vouch for both my efforts and intentions on SB 49 should you want to check with them.  I can share the contact information for their executive director if you would like.

I apologize for not getting this fuller response to you sooner.  However, the legislature was on break the week of July 4th and my wife and I were with two of our sons and their families who were here visiting from out of state.  I am glad to clarify or expand on any of the above.  Just let me know.

Hugh Blackwell

Rep. Hugh Blackwell
Burke County Representative (NC House District 86)
(919) 733-5805