Legislature(1993 - 1994)
03/07/1994 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 339 - NO CENSORSHIP: AMERICAN HISTORY DOCUMENTS CHAIRMAN PORTER introduced discussion of HB 339, sponsored by Rep. Kott. Number 463 REP. PETE KOTT noted that committee members had copies of the sponsor statement and said he would cover a couple of the highlights. He stated, "The proposed bill, relating to the use of historical documents in public schools, is really what I would call enabling legislation. It is best described as an academic freedom measure as it clarifies original source documents of American history that can and should be used to teach our children about American history in our schools, regardless of content, even though many times content may be explicitly religious. Basically, this is an option to allow teachers that are teaching history to use the original source documents to teach our students about their heritage. Whether we like it or not, the early 1700s and 1800s found that - there are religious ideas imbedded in many of the historical documents. Some of those historical documents include Washington's farewell address, the Mayflower Compact. So with that, Mr. Chairman, I would ask that we support this measure and allow those teachers that desire to use the historical documents be given them the ability to use them. I'll entertain any questions." Number 492 SHEILA PETERSON, Special Assistant to Commissioner Covey, Department of Education, testified in support of HB 339. She said, "The Department of Education certainly is committed to academic freedom, and is opposed to any effort at censorship. We support the free use of historical documents in the public schools. In fact, it appears currently that that is the case. No one has come to the department, expressed a concern that they have been denied or restricted in use of historical documents. "As HB 339 is currently written, however, the department does have some concerns. I'd like to briefly discuss those with you today. On page 2, line 9, paragraph (c), it states that `The teacher or the administrator cannot be disciplined for using a historical document.' In a way this risks the allowing of blanket immunity. The inappropriate use of a document or any teaching material should be open to disciplined or other appropriate actions. A similar concern is on page 2, line 6, which says that `The use of a historical document does not constitute the avocation of a partisan, sectarian denominational doctrine.' Possibly certain use of a historical document, if it's used inappropriately, may be advocating a denominational doctrine. "Also on page 2, line 4, states that `A historical document may not be altered to remove religious or secular references.' Possibly this will in effect restrict the use of historical documents if it means that the document cannot be altered or abbreviated in any fashion. A fifth grade teacher may wish to use a document that they would like to abbreviate to allow that student to follow what is being said, but because this language says that they may not remove any religious or secular reference, it may in fact have just the opposite effect of what we really would like to see. We would like to see the use of historical documents used freely within our public schools. "To reassure teachers that there is no concern, possibly the committee would like to consider a cleaner and simpler approach to this problem if there in fact is a problem. Section 14.03.090 currently states that `partisan and sectarian or denominational doctrines may not be advocated in a public school,' and if they are, that the school may not receive public money. [We recommend] possibly just amending that sentence to say something to the effect that `this section does not prohibit the use or the appropriate use of historical documents with religious references.' Maybe this amendment, a simple approach, a cleaner approach, with taking away the possible blanket immunity that is currently in HB 339. "So I guess the Department of Education would like to have you consider possibly changing the bill and just taking a simple and cleaner approach to this problem, if in fact you determine there is a problem." REP. NORDLUND inquired if Ms. Peterson had seen the CS being considered by the committee that very day and suggested that it might be the cleaner, simpler approach to which she was referring. She replied that she had not, and a copy was provided for her review. MS. PETERSON said, "The Department of Education would appreciate this committee substitute. We do agree with it." Number 572 REP. PHILLIPS stated, "In the Judiciary committee substitute, it states that `nothing prohibits the use of historical documents that contain religious references.' I wonder how that relates to the original bill, which says `the avocation of partisan, sectarian or denominational doctrine.'" CHAIRMAN PORTER noted, "The beginning of this section already does that." Number 581 JAN LEVY, Assistant Attorney General, Department of Law, commented as requested on HB 339. He said, "The department didn't see that in current law there would be any legal impediment at the present time to use historical documents with religious references. So, at the outset, that's the opinion of the department. If there is concern from districts or teachers, I think the clarification that Sheila was describing and that apparently is represented in the committee substitute would do the job. At a glance at this, I don't think the department would have any legal concerns at all about this amendment. "It had a couple of concerns about 339 as we looked at it that really reiterate what Sheila had to say. Specifically, in the statement made in (b) on page 2, [that] is actually kind of a legal conclusion that a court might not even necessarily agree with, and so, as Sheila had mentioned, there certainly could be use of a document that contained religious references that could, if used incorrectly, be advocating some partisan or sectarian or denominational doctrine. And also the same concern regarding the rather sweeping statement in (c), that there could be no discipline for any use of any document. And I think those are really the main issues that were of concern to the Department of Law." Number 618 REP. DAVIDSON remarked, "Ms. Levy. Basically, it sounds to me what you've said is that this legislation is not necessary. Is that correct?" Number 662 MS. LEVY replied, "The department didn't see that there was a need for it, although we're not aware of concerns being raised." REP. DAVIDSON said, "So why are we in this exercise?" CHAIRMAN PORTER answered, "To find out whether we have any concerns expressed or not." Number 629 REP. JAMES said, "I wanted to ask a legal question. The concern that you just stated about `the public school teacher or administrator who uses a historical document may not be disciplined or otherwise acted against for using the document' - didn't you say, and I would agree with you, that it's not necessarily to be using the document, it is how it is used, and what kind of an advocacy might be given from the document? So, if that were the thing - which it does say that they can't advocate anything - if they used a historical document, and they advocated something from that document, wouldn't the charge to that teacher then be the advocacy more than it would be the using the document? I don't see that using the document by itself, here, would be a problem that would encourage them to do it incorrectly." MS. LEVY said, "I don't think use of the document does either, I would agree with you. But (b) seems to say that use of a historical document does not constitute advocation, and so, it seems to encompass any use." [UNIDENTIFIED VOICE] stated, "That's the big loophole." MS. JAMES stated, "And I understand that, and I would agree that that is a loophole, and would not necessarily constitute - if we had that in there. I don't have - this substitute doesn't have a page 2, is that correct? I would like to respond to Rep. Davidson's concern. Many times if you don't have protection of something within the law, people assume that it is not there, and historically, historical documents with religious input are not used, for that reason, because they are not sure they can, because it doesn't say they can or can't." Number 658 REP. DAVIDSON said, "Here we have an expert on the law... my feeling is that we are constantly being charged with putting on the books unnecessary laws, and so, I just didn't want this to be an example of that." Number 662 MS. LEVY stated, "Unless there are some other issues that were meant to be addressed by this bill that I'm not aware of, the amendment that was suggested to 14.03.090, while one could argue it's not necessary, it certainly would remove the question as to whether or not that use is permitted; it would resolve that." Number 673 VERNON MARSHALL, Executive Director, National Education Association - Alaska (NEA-AK), testified in opposition to HB 339. Mr. Marshall had not received a copy of the CS until a few moments before speaking. He offered the following comments: "We have spent some time, both in the HESS Committee and since that meeting, analyzing HB 339. Some of the points that we're concerned about were raised by the Department of Law. Our first question is, is the bill really needed? Has anyone said that the Constitution of the United States, the Constitution of the State of Alaska, or the Pledge of Allegiance cannot be used in school? HB 339 would not require the use of any historical document, but would be permissive; therefore, is the bill really necessary? We raised that question. "Second, HB 339 states that any historical document may be used in whole or in part, but may not be altered to remove religious or secular references when such references are part of the document's text. The bill addresses references only when they are part of the text of a historical document. Presumably, every part of a document is either religious or it is secular, one or the other. HB 339 would appear to prohibit the use of a document if the administrator or the instructor alters or allows alteration of the document to remove religious or secular references. "Another point that we noted is as a practical matter that the effect on text book use and purchases could be devastating. A teacher could not assign part of the Emancipation Proclamation or the Gettysburg Address or the Declaration of Independence for discussion or memorization. A court decision such as the Dread Scott decision or Brown v. The Board of Education could not be studied at any level unless the entire decision, without abridgement, were used in the curriculum. Even in law school, case books, abridged court decisions for pedagogical purposes, are allowed to be taught. Surely abridgements are pedagogically appropriate at the elementary and secondary school levels. "Fourth, assuming such restrictions on educators and programs were desirable, there is also another matter that is very practical and very real. We're not like California or Texas or New York. We're a relatively small market as far as text books are concerned, and if we demanded that text book publishers revise their products to include the unabridged text of historical documents, again, this could be very restrictive on Alaska's public schools. "Fifth, the goal is probably to encourage the use of historical documents including religious references. But HB 339, if enacted, could be counterproductive. By restricting educators and by requiring that any historical documents that are used be used in their unaltered or unabridged state, HB 339 would discourage, not encourage, the use of documents in curricula. I think the department [of Education] made reference to that. "A sixth point: Have educators deleted these references from curricula? We have no information to indicate that any religious or secular material has been deleted from curricula. Has anyone seriously proposed - I know, in the Pledge of Allegiance, I believe that's guaranteed under the U.S. Code, I don't know of anyone that has even proposed amending the U.S. Code, to remove `God' from the Pledge of Allegiance. "A seventh point is the statement that a public teacher who uses a historical document may not be disciplined or otherwise acted against for using the document. If enacted into law, this could lead to an unintended result. Suppose a teacher were to use the Declaration of Independence in an algebra class for no proper purpose in that particular math setting. Does HB 339 mean that an algebra teacher could ignore the duty to teach that subject and avoid discipline so long as she or he talks about historical documents? "Eighth, in every state or federal court decision, and all other documents published by a state or the federal government, are these particular documents worthy of treatment as historical documents? Because on page 2, on line 14, we include as historical documents state or federal enactments; on line 16 we include state or federal court decisions; and on line 17 we include documents published by the state and federal government. There are thousands, or possibly millions of documents which... if [the legislature] enacts HB 339, would be elevated to a very sanctified level authorizing the use of the materials by teachers and administrators with impunity - even if they were not suitable for the grade level and subject matter - as long as they were used without alteration or abridgement. Again, I can only refer to a lot of court cases that are referred to on line 16. Many court cases include grizzly matter that I do not know that a teacher would necessarily want to teach, or use that entire document in a classroom, when they could probably use or most likely use an abridged form of that decision. "A ninth point is that we feel that educators ought to decide relative to the proper use of a historical document; and again, that the educators should be required to read the material, develop a lesson plan, and apply that document relative to that lesson plan and that course of instruction. Again, if the intent of the bill is to prohibit the alteration of a document by the omission of any reference, whether religious or secular, we are probably making an effort here, I would assume, to be even-handed. We looked at some Supreme Court enactments, and the most recent is the court decisions out of the State of Louisiana, where they did pass legislation to require even-handed treatment relative to creation science and evolution. And, again, that particular provision was struck down. In this particular case, in an effort to be even-handed, we could be opening our schools up to possible litigation, should a parent or group of parents attempt to challenge a form of teaching that would be allowed under this particular bill, or the use of documents that would be allowed under this particular bill. "We oppose the legislation. We would encourage the committee to also oppose the legislation, and would be glad to respond to any questions if you have them." REP. NORDLUND said, "Vernon, I'm just wondering if you had a chance to look at that CS that's on our desk." MR. MARSHALL responded, "Well, again, I guess the underlined sentence is the addition - on the surface, I share the department's concern. I think it's much better than what's included in the House bill. Again, though, we feel that there's not a problem, and we have not been made aware of any problem relative to an administrator and/or teacher who has been prohibited from using religious references, whether they be in the constitution of our country, the state of Alaska, the Pledge of Allegiance, whatever; we just don't think it's needed. But, again, we'd be more than happy if someone can indicate to us where there is a problem, and we'd be glad to take a look at it." Number 805 REP. NORDLUND stated, "As far as you know in classrooms, if, let's say if you have a high school history class on religions, is it okay for the teachers to refer to the Bible, and make reference to the Koran or any other [text]?" Number 810 MR. MARSHALL replied, "Yes. In both history and literature, it's done. I noticed in the sponsor's materials, in fact, there's a court decision that has protected that particular use of religious references - so long as we're not into a position of actually in a sense advocating a particular faith, whether it be advocated through the Koran or the Bible or whatever. That is pretty much prohibited and protected by the U.S. Constitution." Number 819 REP. PHILLIPS said, "I would like at some point in time for the sponsor to share some of his concerns as far as the necessity for something like this." Number 823 REP. KOTT responded, "This was not an idea that came out of thin air. During the interim period a couple of teachers asked me about this, and they were concerned that the language in the statute, of advocating religious teachings, basically prevented them from using historical documents in teaching history that contained religious activities. I think there's two letters of support from a school board member, as well as a former teacher - or maybe he's currently a teacher - that also suggest that there is potentially a problem, and that this should be resolved. Certainly, I think the bill does that. "I don't know/believe that we're going to demand text books' authors to provide the full document if they so deemed not to provide it. We are in fact giving teachers and administrators the option of using part of a document; either they can use the whole thing or part of it, based on their own discretion. We're not telling them, here's a court case, you have to present the entire court case. You, as a teacher, an administrator, based on your discretion, will select what portions of that is more appropriate. If there is language in there that is not appropriate for teaching seventh graders, I would submit that the teacher would not use it." Number 851 MIKE FORD, Legislative Legal Counsel, Legislative Affairs Agency, commented on HB 339. He said, "I really don't have anything to add. I think the concerns of the Department of Law and the Department of Education - I don't know that I would quite go as far as they go, thinking that there is a going to be a tremendous backlash of our teachers exploding with rampant advocacy of some sectarian or religious belief. Certainly the department already has broad authority to control public schools, and they already have curriculum guidelines. "As I would look at this, it's simply an effort to achieve a neutrality level. If you have a document that qualifies as an historical document, then you can use that. I understand their concerns that some of the provisions may in fact create a broader exception than you'd like to; you could tighten that up if that was your concern. As far as not being disciplined because they used a document, it's simply because we already have a provision of law saying you cannot have partisan, sectarian or denominational doctrine. That provision is already in our law, so we have to add a provision to this bill which deals with that issue, and that's simply to say that using a historical document doesn't constitute that. So, in an effort to get around that prohibition, we've added that provision to this bill. I don't think it was intended to allow for some blanket exemption or for advocacy of some [kind]." Number 874 CHAIRMAN PORTER said, "I see, in some of the documents except the bill, it says `American history documents,' but in the bill itself, it just says `historical documents,' which, obviously, is a much broader scope than American history. Is there some reason why we can't use `American history'?" Number 880 MR. FORD replied, "No, there's been some conversation about the definition of `historical document.' I think you should note that the way the definition is crafted, it simply says it includes these documents. And, of course, under our law, that means includes but not limited to, so it certainly would include American historical documents; maybe a lot of other things that are not in here. So I don't think the definition is intended to limit us. It is intended to just list things that are definitely included..." TAPE 94-34, SIDE A Number 000 [Brief discussion continued from previous tape; text missing due to tape ending.] MR. FORD continued, "I think probably a better approach is, if you were concerned about, if you wanted to limit it to American documents, you could do that. If you were concerned about it being included, I would simply suggest you add that to the list and make sure that those are included. I can't really tell you if the Mayflower Compact is considered an American document or not. I'm trying to remember my high school history." CHAIRMAN PORTER stated, "That wasn't my reason for asking the question. I just noted that many of the documents supporting the bill say `American history' but it doesn't say that in the bill, so..." CHAIRMAN PORTER asked if there were further questions, asking, "What is the wish of the committee?" REP. NORDLUND said, "Mr. Chairman, are we entertaining the CS or the original version?" CHAIRMAN PORTER replied, "We are, at this point, considering the original version of the bill." Number 030 REP. KOTT responded to a request for a clarification of his feelings regarding the two versions. He said, "Realistically, I think the bill is a little tighter as it addresses the [inaud. due to paper shuffling]. I don't want to give teachers or administrators the blanket authority to use any kind of document. We could perhaps say the King James version could be used as an historical document, but I don't think that's the intent. That's the reason for at least identifying some of these documents that we're talking about. We're not talking about Bibles or anything of that nature, and I prefer that we support the original bill, or make some inclusion into the committee substitute." CHAIRMAN PORTER said, "So that we can, would you move the bill, then, and we'll..." Number 069 REP. KOTT moved HB 339. Number 070 CHAIRMAN PORTER stated, "We have a motion to move HB 339. Under discussion, I would have to say that I would oppose the passage or movement of HB 339 as it is now. I addressed my concerns with the two specific things that were referenced by the Department of Education and the Department of Law in (b) and in (c); (d), while I recognize that some people believe saying `historical documents include' and then listing those, leaves it open for others, but several other references I've seen used say `includes but is not limited to.' I don't know if that's important or not, but it asks the question, and I hate passing things that ask more questions than they answer. "If I have - and this is why this sequence was developed - if I am in any way correct in what it is that this bill was trying to get at, this one line on the CS seems to cover it. I guess I'm just saying for discussion that I would not support this, but I probably would support the CS." Number 102 REP. JAMES remarked that she felt that the CS accomplished the sponsor's purpose, but expressed support for the original version of the bill, as well, asking for some time to address the concerns that had been raised that day in the hearing. Rep. James, noting that she had been in the Alaska longer than most of those present, presented counterpoint from her experiences to challenge testimony that had suggested the legislation was unnecessary. REP. JAMES said, "I've seen a trend, and talked to various people over the years, that [people] are so fearful of using anything that has any religious content in it at all that what we have actually done in our schools is created a nonreligion which is another religion. I believe that we need to balance the issue here... and I think that this will do that, and give some teachers some comfort in being able to do some of the things that they have up until now been believing that they could not, and/or were told by their school boards or school districts or administrators that they could not. We need to at least go that far. "Some of these other things that we heard in the testimony here today... I think could be tightened up and fixed to address their concerns, and also make me feel more comfortable with having a little more substantive." Number 146 REP. NORDLUND stated, "I am going to oppose the original version of the bill here in the committee, and if it ever makes it to the floor, primarily because of the arguments from the Department of Education, as well as from the NEA, which leaves us with the CS; if we decide to adopt that one, then I think we're in a situation in which I don't think the CS really accomplishes anything. Now, if there are fears that some day, maybe there might be these restrictions about using historical documents with religious references in them, then I could change my mind. I guess I am saying I'm open-minded to the second version. I'll be voting with the Chairman on the original bill, but probably would at least vote to pass out the other version of the bill." Number 172 REP. PHILLIPS said, "I have a little problem, in the original bill, with limiting the documentation to `American history' because, as you teach world history, as you teach literature, as you teach any number of subjects - languages, etc. - you are going far beyond American history. I just have a problem with that limited scope in the original bill." Number 181 REP. KOTT stated, "Mr. Chairman, I am going to withdraw my motion to move and make a motion to adopt the committee substitute." CHAIRMAN PORTER said, "We have a motion to adopt the committee substitute. Is there further discussion? Is there objection to the adoption of the committee substitute dated 3/7/94, 393/J? No objection? We have before us CS for HB 339 Judiciary. Further discussion? Is there a motion to adopt the...?" REP. JAMES stated, "Motion to move out with individual recommendations." CHAIRMAN PORTER asked, "Is there a fiscal note? Is there further discussion of the motion to move? I am seeing none. Is there objection? Bill is passed."
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