BILL NUMBER: AB 9 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 2011
AMENDED IN ASSEMBLY MARCH 21, 2011
INTRODUCED BY Assembly Member Ammiano
( Coauthor: Senator Kehoe
)
DECEMBER 6, 2010
An act to add Sections 234.4, 234.5, 234.6, 234.7, 234.8, and
48900.45 to the Education Code, relating to pupil rights.
LEGISLATIVE COUNSEL'S DIGEST
AB 9, as amended, Ammiano. Pupil rights: bullying.
Existing law provides that it is the policy of the state to afford
all persons in public schools, regardless of their disability,
gender, nationality, race or ethnicity, religion, sexual orientation,
or any other characteristic that is contained in the definition of
hate crimes, equal rights and opportunities in the educational
institutions of the state, and that it is the purpose of existing law
to prohibit acts that are contrary to that policy and to provide
remedies therefor. Existing law requires the State Department of
Education to develop a model handout, posted on appropriate
department Internet Web sites, describing the rights and obligations
set forth in these provisions and the policies addressing
bias-related discrimination and harassment in schools. Existing law
also requires the department to monitor adherence to these provisions
and, as part of its regular monitoring and review of local
educational agencies, to assess whether local educational agencies
have adopted a policy that prohibits discrimination and harassment
and a process for receiving and investigating complaints of
discrimination and harassment, as specified.
Consistent with these provisions, this bill would require each
school district , on or before July 1, 2012, to
adopt a e nsure that its policy
prohibiting discrimination, harassment, intimidation, and bullying
include specified components , and to adopt a
include in its process for receiving and
investigating complaints of discrimination, harassment, intimidation,
and bullying , on or before July 1, 2012
specified components . The bill would require school districts
to provide information to school personnel, school district board
members, and pupils on the policy and the process, as specified.
Because this bill would require local educational agencies to
perform additional duties, this bill would impose a state-mandated
local program.
The bill would also require encourage
all local educational agencies to collect data related to pupil
experiences with discrimination, harassment, intimidation, and
bullying, as specified. The bill would require the department, in the
next revision of either the California Healthy Kids Survey or, if
that is not feasible, in the next revision of the California Student
Survey, to include questions seeking information on discrimination,
harassment, intimidation, and bullying and require local educational
agencies to survey their pupils with those questions. The bill would
also require the department to request that the Youth Risk Behavior
Survey include questions seeking information on discrimination,
harassment, intimidation, and bullying, as specified. The bill would
require the Superintendent of Public Instruction, at the beginning of
each school year, to post on his or her Internet Web site ,
and to provide to each school district , a list of
statewide resources, including community-based organizations, that
provide support to youth who have been subjected to school-based
discrimination, harassment, intimidation, or bullying, and their
families.
Under existing law a pupil enrolled in any of grades 4
to 12, inclusive, may be suspended from school or recommended for
expulsion if the superintendent or the principal of the school in
which the pupil is enrolled determines that the pupil has
intentionally engaged in harassment, threats, or intimidation,
directed against school district personnel or pupils, that is
sufficiently severe or pervasive to have the actual and reasonably
expected effect of materially disrupting classwork, creating
substantial disorder, and invading the rights of either school
personnel or pupils by creating an intimidating or hostile
educational environment.
This bill would provide, notwithstanding any other law, that a
pupil who is found to have committed an act of discrimination,
harassment, intimidation, or bullying, as specified, shall
not automatically be subject , prior to
suspension or expulsion, but shall be subject to
alternative discipline or progressive discipline,
as defined, and suspension only when other means of
correction fail to bring about proper conduct, as specified.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and declares that the State
of California is committed to a safe and civil educational
environment for all pupils, employees, parents and legal guardians,
volunteers, and patrons that is free from discrimination, harassment,
intimidation, or bullying.
(b) The Legislature finds and declares that the intent of this act
is to clarify and supplement the existing law on discrimination,
harassment, intimidation, and bullying in public schools.
(c) The Legislature finds and declares all of the following:
(1) Pupils who are subjected to discrimination, harassment,
intimidation, or bullying may suffer long-term social, emotional, and
psychological harms.
(2) The public policy of this state is to reduce and ultimately
eliminate school-based discrimination, harassment, intimidation, and
bullying.
(3) The public policy of this state is to provide pupils with a
safe school environment in which all pupils are included and
respected and have an equal opportunity to participate in all school
activities and events.
(4) The most effective way to reduce discrimination, harassment,
intimidation, and bullying is to create a schoolwide culture of
inclusion and respect for differences.
(5) The public policy of this state is to provide support for
youth who are victimized by discrimination, harassment, intimidation,
or bullying , and support for the families of those
youth.
(6) The public policy of this state is to provide effective
interventions for youth who engage in acts of discrimination,
harassment, intimidation, and bullying to help them change their
behavior and avoid entering the criminal justice system.
(7) The public policy of this state is to ensure that laws and
policies that prohibit discrimination, harassment, intimidation, and
bullying are enforced evenhandedly and are not disproportionately
applied to any class or group.
SEC. 2. Section 234.4 is added to the Education Code, to read:
234.4. (a) Consistent with subdivision (a) of Section 234.1, on
or before July 1, 2012, each school district shall adopt a
ensure that its policy prohibiting
discrimination, harassment, intimidation, and bullying .
(b) A school
district shall have local control over the content of the policy,
except that the policy shall contain, at a minimum,
includes all of the following components:
(1) A statement that all pupils have the right to participate
fully in the educational process, free from discrimination,
harassment, intimidation, and bullying pursuant to subdivision (a) of
Section 201.
(2) A statement that each school in the district has an
affirmative obligation to combat all forms of bias and a
responsibility to provide equal educational opportunity pursuant to
subdivision (b) of Section 201.
(3) A statement that California law and school district policy
prohibit discrimination, harassment, intimidation, and bullying based
upon any of the actual or perceived characteristics contained in the
definition of hate crimes set forth in Section 422.55 of the Penal
Code, any of the actual or perceived characteristics listed in
Section 220, and disability, gender, gender identity, gender
expression, nationality, race or ethnicity, religion, sexual
orientation, or association with a person or group with one or more
of these actual or perceived characteristics. School districts are
also encouraged to prohibit discrimination, harassment, intimidation,
or bullying more generally, but the statement must contain a list of
the characteristics set forth in Section 220.
(4) A description of the school district's procedure for
addressing complaints of discrimination, harassment, intimidation,
and bullying pursuant to subdivision (a) of Section 234.5.
(5) The names of two or more administrative personnel in each
school as required by subdivision (c) of Section 234.5.
(6) A statement that all school personnel who witness an act of
discrimination, harassment, intimidation, or bullying are required
to take immediate steps to intervene when safe to do so.
(7) A statement that the policy applies to all acts related to
school activity or school attendance occurring within a school under
the jurisdiction of the superintendent of the school district or
principal or within any other school district that occur at any time,
including, but not limited to, any of the following:
(A) While on school grounds.
(B) While going to or coming from school.
(C) During the lunch period whether on or off campus.
(D) During, or while going to or coming from, a school-sponsored
activity.
(8) An attached copy of the written complaint form published by
the school pursuant to subparagraph (3) of subdivision (b) of Section
234.5.
(9) A link to the Superintendent's list of statewide resources for
youth who have experienced discrimination, harassment, intimidation,
or bullying and for the families of those youth pursuant to Section
234.7.
(c)
(b) The policy shall be posted and publicized on or
before July 1, 2012, as follows:
(1) In all parent-student handbooks issued in the school district,
which shall also include a statement that pupils are expected to
contribute to building a culture of inclusion and respect.
(2) On the school district's Internet Web site and all individual
school Web sites.
(3) In all school district and school administrative offices.
(d)
(c) A statement notifying school personnel and pupils
of the existence of the policy, and where a written copy of the
policy is available in the school and the school district, shall be
publicized and posted on or before July 1, 2012, as follows:
(1) The statement shall include the following language:
"Discrimination, harassment, intimidation, and bullying are not
acceptable ways to treat others. California law prohibits
discrimination, harassment, intimidation, and bullying based on a
student's actual or perceived disability, gender, gender identity,
gender expression, nationality, race or ethnicity, religion, sexual
orientation, or association with a person or group with one or more
of these actual or perceived characteristics.
"Tell Tell a teacher or a school
employee if you see or experience discrimination, harassment,
intimidation, or bullying. You have the right to file a complaint and
to have the school protect you. Complaint forms are available on all
school district Internet Web sites and in all school and
administrative offices."
(2) The statement shall be posted in all teacher lounges, staff
rooms, classrooms, gyms, locker rooms, bathrooms, and cafeterias in
each school.
(e)
(d) The policy and the statement shall be translated
pursuant to Section 48985. If translated, the policy and the
statement shall be publicized and posted pursuant to subdivisions (c)
and (d) in both the English and non-English versions.
SEC. 3. Section 234.5 is added to the Education Code, to read:
234.5. (a) Consistent with subdivision (b) of Section 234.1, on
or before July 1, 2012, each school district shall adopt a
include in its process for receiving and
investigating complaints under the department's Uniform
Complaint Procedures as set forth in department regulations, all
complaints of discrimination, harassment, intimidation, and
bullying .
(b) A school
district shall have local control over the content of the complaint
process and may use the department's Uniform Complaint Procedures as
set forth in department regulations, , except
that the process for receiving and investigating complaints of
discrimination, harassment, intimidation, and bullying shall include
all of the following components:
(1) A requirement that if school personnel witness an act of
discrimination, harassment, intimidation, or bullying he or she shall
take immediate steps to intervene when safe to do so.
(2) A timeline for each school in the school district or the
school district to investigate and resolve complaints of
discrimination, harassment, intimidation, and bullying that does not
exceed 30 working days from the date the complaint was received. The
school, or if applicable, school district, shall report to the
complainant the resolution of the complaint within 45 working days of
the initial filing, if the complainant identifies himself or herself
and requests a response.
(3) A written complaint form published by the school district, and
made available at all school and school district offices and on
school and school district Internet Web sites, that includes, at a
minimum, all of the following:
(A) Questions intended to elicit a description of the incident
complained of and to identify any individual who may have been
involved or witnessed in, or witnessed,
the incident.
(B) A checklist of the actual or perceived characteristics listed
in Section 220 to allow the complainant to identify whether one of
these characteristics was the basis of the discrimination,
harassment, intimidation, or bullying.
(C) A description of the complaint process and timeline.
(D) A statement that complainants will be protected from
retaliation and that those who investigate a complaint alleging
discrimination, harassment, intimidation, or bullying will protect
the confidentiality of the parties to the extent possible.
(E) A statement that the complaint may be filed anonymously, and a
space to indicate whether a response is requested.
(F) A description of the location at each school in the district
where the complaint may be filed, pursuant to subdivision
(d) (c) .
(G) A statement that the complainant has a right to appeal a
school or school district resolution of a complaint and a description
of the appeal process, which, at a minimum, must describe the
process required by the department's Uniform Complaint Procedures as
set forth in department regulations.
(H) A statement that it is not necessary to exhaust any
administrative complaint process before pursuing civil law remedies.
(I) The names of the two or more personnel on each school campus
, identified pursuant to subdivision (c)
(b), and of the local educational agency officer
, identified pursuant to subdivision (g) of Section
234.1, responsible for ensuring district compliance with the
department's Uniform Complaint Procedures as set forth in department
regulations and Chapter 2 (commencing with Section 200).
(4) A process for a pupil to report complaints of discrimination,
harassment, intimidation, or bullying to any school personnel or
school district through any means other than the written complaint
form that includes:
(A) A requirement that school district or school personnel report
the nonwritten complaint within 48 hours to the school or the school
district for investigation and resolution.
(B) A requirement that the pupil who made the nonwritten complaint
is provided with the same information included in the written
complaint form, as set forth in paragraph (3).
(c)
(b) Each school district shall identify at least two
school administrative personnel on each campus whose names and
contact information are posted with the school district policy
prohibiting discrimination, harassment, intimidation, and bullying,
pursuant to the requirements of subparagraph (I) of paragraph (3) of
subdivision (b) (a) . These personnel
shall be:
(1) Knowledgeable about the school district's policy and complaint
procedure regarding discrimination, harassment, intimidation, and
bullying.
(2) Available to pupils as a resource to assist with complaints of
discrimination, harassment, intimidation, and bullying.
(3) Able to refer pupils to counseling, as appropriate.
(d)
(c) Each school district shall assign a specific
location for every school in the district where complaints may be
filed, such as the principal's office.
(e)
(d) If applicable, pursuant to Section 48985, each
school district shall make the complaint process available in the
primary language other than English.
(f)
(e) Consistent with subdivision (e) of Section 234.1,
each school district shall maintain documentation of complaints and
their resolution for a minimum of one review cycle of what is
commonly known as the department's Categorical Program Monitoring
process.
SEC. 4. Section 234.6 is added to the Education Code, to read:
234.6. (a) School districts, consistent with the provisions of
Article 3.6 (commencing with Section 32228) of Chapter 2 of Part 19,
shall offer professional development training for school personnel
that covers all of the following topics:
(1) The school district policy prohibiting discrimination,
harassment, intimidation, and bullying, adopted pursuant to Section
234.4.
(2) The actual or perceived characteristics covered by the school
district policy prohibiting discrimination, harassment, intimidation,
or bullying, pursuant to paragraph (3) of subdivision (b) of Section
234.4.
(3) The school district process for receiving and investigating
complaints of discrimination, harassment, intimidation, and bullying,
adopted pursuant to Section 234.5.
(4) Techniques for intervening in discrimination, harassment,
intimidation, and bullying, including how teachers and other school
personnel can create a schoolwide culture of inclusion and respect
for differences without infringing on pupils' free speech rights.
(5) The harm caused by discrimination, harassment, intimidation,
and bullying.
(b) In the course of existing orientation provided to school
district board members, each school district shall provide school
board members with information about the school district policy
prohibiting discrimination, harassment, intimidation, and bullying,
adopted pursuant to Section 234.4, and the school district process
for receiving and investigating complaints of discrimination,
harassment, intimidation, and bullying, adopted pursuant to Section
234.5.
(c) In the course of existing orientation provided to pupils, each
school district, consistent with the provisions of Article 3.6
(commencing with Section 32228) of Chapter 2 of Part 19, shall
provide pupils with age-appropriate information about all of the
following:
(1) The school district policy prohibiting discrimination,
harassment, intimidation, and bullying, adopted pursuant to Section
234.4.
(2) The actual or perceived characteristics covered by the school
district policy prohibiting discrimination, harassment, intimidation,
or bullying, pursuant to paragraph (3) of subdivision (b) of Section
234.4.
(3) The school district process for receiving and investigating
complaints of discrimination, harassment, intimidation, and bullying,
adopted pursuant to Section 234.5.
(4) The difference between protected speech and discrimination,
harassment, intimidation, and bullying.
(5) The harm caused by discrimination, harassment, intimidation,
and bullying.
SEC. 5. Section 234.7 is added to the Education Code, to read:
234.7. At the beginning of each school year, the Superintendent
shall post on his or her Internet Web site and provide to each school
district a list of statewide resources, including community-based
organizations, that provide support to youth who have been subjected
to school-based discrimination, harassment, intimidation, or
bullying, and their families.
SEC. 6. Section 234.8 is added to the Education Code, to read:
234.8. (a) All local educational agencies shall
are encouraged to collect data related to pupil
experiences with discrimination, harassment, intimidation, and
bullying each year. The data may be collected through annual
participation in the California Healthy Kids Survey or, if inclusion
of the information in that survey is not feasible, through
participation in the California Student Survey.
(b) The department shall, in the next revision of either the
California Healthy Kids Survey or, if that is not feasible, in the
next revision of the California Student Survey, include questions
seeking information on discrimination, harassment, intimidation, and
bullying based upon any of the actual or perceived characteristics
contained in the definition of hate crimes set forth in Section
422.55 of the Penal Code, any of the actual or perceived
characteristics listed in Section 220, and disability, gender, gender
identity, gender expression, nationality, race or ethnicity,
religion, sexual orientation, or association with a person or group
with one or more of these actual or perceived characteristics, and
require local educational agencies to survey their pupils with those
questions.
(c) The department shall request that the Youth Risk Behavior
Survey include questions seeking information on discrimination,
harassment, intimidation, and bullying based upon any of the actual
or perceived characteristics contained in the definition of hate
crimes set forth in Section 422.55 of the Penal Code, any of the
actual or perceived characteristics listed in Section 220, and
disability, gender, gender identity, gender expression, nationality,
race or ethnicity, religion, sexual orientation, or association with
a person or group with one or more of these actual or perceived
characteristics.
SEC. 7. Section 48900.45 is added to the Education Code, to read:
48900.45. (a) Notwithstanding any other law, a pupil who is found
to have committed an act of discrimination, harassment,
intimidation, or bullying under subdivision (r) of Section 48900, or
Section 48900.2, 48900.3, or 48900.4, shall not
automatically be subject to suspension or expulsion, but
prior to suspension or expulsion, shall be subject to
alternative discipline or progressive discipline
pursuant to this section, and shall be subject to suspension pursuant
to Section 48900.5 if he or she has access to, and is otherwise
given the opportunity to make up, missed coursework without
additional academic penalty.
(b) Notwithstanding any other law, a pupil who is the target of an
act of discrimination, harassment, intimidation, or bullying under
subdivision (r) of Section 48900, or Section 48900.2, 48900.3, or
48900.4, shall not automatically be disciplined for defending himself
or herself against an act of discrimination, harassment,
intimidation, or bullying under those sections unless the
superintendent or principal of the school, in his or her discretion,
based upon the circumstances, deems discipline to be appropriate;
however, that discipline must conform to the requirements of
subdivision (a) prior to suspension or expulsion.
(b)
(c) For the purpose of this section, "alternative
discipline" means disciplinary action other than suspension or
expulsion that is designed to correct and address the root causes of
the pupils's specific misbehavior by giving the pupil notice of
the inappropriateness of the behavior, teaching him or her
appropriate behavior, and instituting increasingly severe responses
for repeated instances of the same type of misbehavior, while
still retaining the pupil in class or school, including, but
not limited to: school. "Alternative discipline"
includes, but is not limited to:
(1) Meeting with pupil and parent.
(2) Reflective activities such as writing an essay about the
misbehavior.
(3) Mediation to address the conflict between pupils.
(4) Counseling, pursuant to subdivision (v) of Section 48900.
(5) Anger management, pursuant to subdivision (v) of Section
48900.
(6) Health counseling or intervention.
(7) Mental health counseling.
(8) Social-emotional cognitive skill building.
(9) Community service, pursuant to Section 48900.6.
(10) In-school detention or suspension, during lunchtime, after
school, or on weekends.
(c) For the purpose of this section, "progressive discipline"
means the process of dealing with pupil misbehavior in a manner that
gives notice of the inappropriate behavior to the pupil and teaches
him or her appropriate behavior by instituting increasingly severe
responses for repeated instances of the same type of misbehavior.
SEC. 8. The Legislature finds and declares that it is the intent
of this act to clarify existing law as set forth in Chapter 2
(commencing with Section 200) of Part 1 of Division 1 of Title 1 of
the Education Code. The Legislature further finds and declares that,
under existing case and statutory law, a school district and school
could be held vicariously liable for any discrimination, harassment,
intimidation, or bullying by any individual who has contact with
pupils by virtue of employment or other contractual relationship with
the school district and any discrimination, harassment,
intimidation, or bullying related to school activity or attendance,
as set forth in subdivision (s) of Section 48900, that the
school district or school knew or reasonably should have known about
.
SEC. 9. This act shall not be construed to limit pupil rights to
free speech as protected by the United States Constitution, the
California Constitution, Sections 48907 and 48950 of the Education
Code, and other applicable law.
SEC. 10. This act shall not be construed to require an exhaustion
of any administrative complaint process before civil law remedies may
be pursued.
SEC. 11. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.