Fifth-Grade Teacher: New Obscenity Legislation Misconstrues What's Happening in Montana Schools, Could Still Make Teachers Vulnerable to Criminal Charges

Kellen Alger has been teaching in Montana for 13 years. He taught for seven years in Cut Bank, teaching middle schoolers, and the last five years, he's been teaching fifth graders at Jefferson Elementary School in Helena.

Alger grew up in a family of teachers, with both of his parents teaching throughout his early life. He said the last thing he wanted to do was become a teacher, but when college came around the profession sucked him in.

"It was just like: 'This is what I want to do. This is meaningful.' And I saw how frustrating it could be from my parents, but there's so many good things about it, and the benefits definitely outweigh the hard days," Alger said.

Alger said part of teaching is starting with an idea that hooks kids into learning, but then having the freedom and the ability to organically grow the curriculum to make it more engaging for his students and for him.

That's something he said could change if House Bill 234, which is nearing passage in the Montana Legislature, becomes law. In its original form, the bill would have added museums, libraries, and public schools to the list of entities that could be open to criminal charges under Montana's obscenity laws, which ban displaying obscene material to minors.

HB 234 was amended several times by the House Judiciary Committee and the Senate Education and Cultural Resources Committee to instead give the power to cities, counties or school districts to create more strict ordinances and regulations on the display of obscene material. But Alger said he worries it still leaves school teachers vulnerable to criminal charges for teaching something that someone might see as "obscene."

"I would have to spend 90 percent of my day on the phone with somebody asking, 'Is it OK if I do so and so?' Which is terrible. That's not authentic learning," Alger said. "This bill has the potential to take learning freedom away, and then we can't do anything without going, 'oh I have to go get my script checked before I do anything.'"

Algler said he doesn't have the time to monitor every bill that could affect his career, but throughout his tenure has always paid attention to the legislative session. After graduating from college, he took a job working for the Montana Rural Education Association, as a legislative intern, which brought him to the Capitol.

"My job was to sit through all of the Senate Education and House Education hearings and track all these bills for an entire legislative session. I kind of discovered that there's this whole other side of education," Alger said. "It's very important because it does impact my day-to-day life now, and so I just decided that it was important to stay involved. It's important to know what's happening and what's going to affect you."

Rep. Bob Phalen, is sponsoring House Bill 234, which passed the House of Representatives on a narrow vote of 53-45 on Feb. 9, and was approved by the Senate on a party-line vote 35-15 on April 18. The bill has to be reconfirmed by the House due to an amendment placed on it by the Senate Education and Cultural Resources Committee before going to the governor's desk.

Phalen said the reason behind the bill is because educational staff and facilities act on behalf of the taxpayer during the school day, and should be held responsible for providing a positive and safe learning environment. Phalen cited several schools housing a book titled Gender Queer in their library across the state (including seven of the largest schools in Montana) as a critical reason for tightening up the obscenity laws on school grounds, and giving the power to create more strict regulations to local entities.

"We're talking about school officials, but really this bill is to protect the kids of Montana," Phalen said.

Throughout the bill process, supporters of the bill have said educators and schools need to be held to a higher standard when it comes to vulgar things they see as being pushed on students.

Opponents to the bill believe it is an attack on educators' freedom to teach freely. And, they said, concerns from the bill's supporters are not rooted in the reality of day-to-day education.

Sen. Dan Salomon, R-Ronan, is carrying the bill for Phalen in the Senate, and said the bill is about giving the power to local entities to make decisions and create stricter regulations.

"All of those boards, whether it be a public library, a public school, they're generally elected boards or appointed by elected officials. We don't legislate local control in this situation. It will run through, and be dealt with, within the local control in those situations," Salomon said.

Rep. Matt Regier, R-Kalispell, is the Speaker of the House, and testified in support of HB 234 during the bill's hearing in the Senate on April 7. He said during his testimony that convenience stores already have to protect minors from obscenity, and it's only logical the same regulations be applied to taxpayer-funded schools.

Alger said the amendments to the bill makes it less restrictive on teachers, but adds code clutter to the state's law. And, he said, what is being proposed is already the generally accepted practice of teachers across the state.

"The way that it's been amended is that now at least now it's up to local decision. So the local control piece is back in it and so it's sort of back to the system that's already in place – every school district has a policy for sorting through what's appropriate and what's not. We're kind of just back to where we started," Alger said.

Obscenity is already defined in Montana code, and still uses a tool known as the Miller test, which was created in 1973 during the Supreme Court Case: Miller v California. The three-part test was created by the courts as a federal guideline to test whether expression or speech can be determined as obscene and not protected under the First Amendment.

Alger said what should be deemed as obscene is subjective to each individual, and even the Miller test is subjective.

"With me as a parent, not even a teacher, I took issue with it as a parent. My values are different then my neighbor's values, and they're different then someone on the other side of the stage. If we're just going to blanket 'this is what is obscene for every kid, and this is OK,' I take issue with that. I think my values as a parent should dictate what I think is obscene or what I am OK with my kids being exposed to," Alger said.

Alger testified against HB 234 during its hearing in the Senate Education and Cultural Resources Committee, where he invited anyone in the room to come down to his classroom and see what actually happens during lessons.

Amanda Curtis, president of Montana Federation of Public Employees, echoed Alger, and said HB 234 is a messaging bill that isn't grounded in the reality of what is actually being taught, and how teachers conduct themselves in classrooms.

"Montana's teachers and librarians are highly respected professionals in their local communities. MFPE members across Montana urge legislators to stop bringing politics into our schools and to respect educators just like students and parents do," Curtis said.

Alger said there's a growing sentiment and pressure from politicians that teachers are trying to persuade students into following a certain way of life and beliefs.

"I heard people that were pushing for it, that were supporting this bill, just the way they were trying to angle the approach for the narrative about teachers, about public schools. I sat there in person and watched person after person step up to give testimony, and say that teachers are indoctrinating kids or pushing their values on kids. It's not true. I mean it's the farthest thing from the truth," Alger said. "As a teacher, my biggest responsibility is to build relationships with the kids and the families I have. I have to build connections and support them to provide the tools to think critically."

Caven Wade is a student reporter with the UM Legislative News Service, a partnership of the University of Montana School of Journalism, the Montana Broadcasters Association, the Montana Newspaper Association and the Greater Montana Foundation. He can be reached at [email protected].