BILL ANALYSIS Ķ AB 9 Page 1 Date of Hearing: April 13, 2011 ASSEMBLY COMMITTEE ON EDUCATION Julia Brownley, Chair AB 9 (Ammiano) - As Amended: April 6, 2011 SUBJECT : Pupil rights: bullying SUMMARY : Requires school districts to have policies prohibiting discrimination, harassment, intimidation, and bullying and a process for submitting and investigating complaints of such acts, to offer professional development to address discrimination, harassment, intimidation, and bullying, and to establish alternative discipline for pupils that engage in specified acts. Specifically, this bill : Policy and Notification Requirements : 1)Requires, on or before July 1, 2012, each school district to ensure that its policy prohibiting discrimination, harassment, intimidation, and bullying includes all of the following components: a) A statement that all pupils have the right to participate fully in the educational process, free from discrimination, harassment, intimidation, and bullying; b) 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; c) 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, 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; d) A description of the school district's procedure for addressing complaints; e) The names of two or more administrative personnel on each school campus that are available as a resource to pupils and able to refer them to counseling as well as the name of the individual of the local educational agency (LEA) that is responsible for ensuring compliance with the California Department of Education's (CDE) Uniform AB 9 Page 2 Complaint Procedures (UCP); f) A statement that all school personnel who witness an act of discrimination, harassment, intimidation, or bullying are required take immediate steps to intervene when safe; g) 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: i) While on school grounds; ii) While going to or coming from school; iii) During the lunch period whether on or off campus; or, iv) During, or while going to or coming from, a school-sponsored activity; h) An attached copy of the written complaint form published by the school; and, i) A link to the Superintendent of Public Instruction's (SPI) list of statewide resources for youth who have experienced discrimination, harassment, intimidation, or bullying and for the families of those youth. 2)Requires the policy to be posted and publicized on or before July 1, 2012, in all parent-student handbooks issued in the school district, on the school district's Internet Web site and all individual school Web sites, in all school district and school administrative offices. 3)Requires the publication and posting of a specific 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, and requires the statement to be publicized and posted on or before July 1, 2012, in all teacher lounges, staff rooms, classrooms, gyms, locker rooms, bathrooms, and cafeterias in each school. 4)Stipulates that the statement and the policy shall be translated pursuant to existing law and posted in English and other languages, if translated. Complaint Process: 1)Requires, on or before July 1, 2012, each school district to include in its process for receiving and investigating AB 9 Page 3 complaints under the CDE's UCP all complaints of discrimination, harassment, intimidation, and bullying, except that it requires the process for receiving and investigating complaints to include all of the following components: a) 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; b) A timeline for each school in the school district or the school district to investigate and resolve complaints that does not exceed 30 working days from the date the complaint was received; c) A requirement for the school or school district, to report to the complainant the resolution of the complaint within 45 working days of the initial filing, if a response is requested; d) 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: i) Questions intended to elicit a description of the incident complained of and to identify any individual who may have been involved or witnessed the incident; ii) A checklist of the actual or perceived characteristics specified in current law to allow the complainant to identify whether one of these characteristics was the basis of the discrimination, harassment, intimidation, or bullying; iii) A description of the complaint process and timeline; iv) A statement that complainants will be protected from retaliation and that confidentiality will be protected to the extent possible; v) A statement that the complaint may be filed anonymously, and a space to indicate whether a response is requested; vi) A description of the location at each school in the district where the complaint may be filed; vii) A statement that the complainant has a right to appeal a school or school district resolution and a description of the appeal process, which, at a minimum, must describe the process required by the CDE's UCP as set forth in regulations; viii) A statement that it is not necessary to exhaust any administrative complaint process before pursuing civil AB 9 Page 4 law remedies; and ix) The names of two or more personnel on each school campus and of the LEA officer responsible for ensuring district compliance with CDE's UCP; and, e) A process for a pupil to report complaints through any means other than the written complaint form that includes a requirement that school district or school personnel report the non-written complaint within 48 hours to the school or the school district for investigation and resolution, and a requirement that the pupil who made the non-written complaint is provided with the same information included in the written complaint form. 2)Requires each school district to 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. 3)Requires the personnel in 2) above to be knowledgeable about the school district's policy and complaint procedure regarding discrimination, harassment, intimidation, and bullying, available to pupils as a resource to assist with complaints, and able to refer pupils to counseling, as appropriate. 4)Specifies that each school district shall assign a specific location for every school in the district where complaints may be filed, and if applicable, make the complaint process available in the primary language of pupils that speak languages other than English. 5)Requires each school district to maintain documentation of complaints and their resolution for a minimum of one review cycle of CDE's Categorical Program Monitoring (CPM) process. Professional Development: 1)Requires school districts to offer professional development training for school personnel that covers all of the following topics relative to discrimination, harassment, intimidation, and bullying: a) The school district's adopted policy prohibiting such acts and the actual or perceived characteristics covered by the policy; AB 9 Page 5 b) The school district process for receiving and investigating complaints; c) Techniques for intervening in such acts, including how teachers and other school personnel can create a school wide culture of inclusion and respect for differences without infringing on pupils' free speech rights; and, d) The harm caused by discrimination, harassment, intimidation, and bullying. 2)Requires, in the course of existing orientation provided to school district board members, each school district to provide members information about the school district's policy prohibiting discrimination, harassment, intimidation, and bullying, and the school district's process for receiving and investigating complaints of such acts. 3)Requires, in the course of existing orientation provided to pupils, each school district, to provide pupils with age-appropriate information about all of the following: a) The school district's policy prohibiting discrimination, harassment, intimidation, and bullying and the actual or perceived characteristics covered by the school district's policy; b) The school district's process for receiving and investigating complaints of such acts; c) The difference between protected speech and discrimination, harassment, intimidation, and bullying; and, d) The harm caused by discrimination, harassment, intimidation, and bullying. Discipline : 1)Requires a pupil who is found to have committed an act of discrimination, harassment, intimidation, or bullying, prior to suspension or expulsion be subject to alternative discipline, and shall be subject to suspension if he or she has access to, and is otherwise given the opportunity to make up, missed coursework without additional academic penalty. 2)Provides that a pupil who is the target of an act of discrimination, harassment, intimidation, or bullying shall not be automatically disciplined for defending himself or herself against such act unless the superintendent or principal in his or her discretion based on the circumstances AB 9 Page 6 deems discipline appropriate, and requires such discipline to conform to the requirements of alternative discipline and coursework requirements prior to suspension or expulsion. 3)Defines "alternative discipline" as disciplinary action other than suspension or expulsion that is designed to correct and address the root causes of the pupil's 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 retaining the pupil in class or school. 4)Specifies that alternative discipline includes, but not limited to: a) Meeting with pupil and parent; b) Reflective activities such as writing an essay about the misbehavior; c) Mediation to address the conflict between pupils; d) Counseling; e) Anger management; f) Health counseling or intervention; g) Mental health counseling; h) Social-emotional cognitive skill building; i) Community service; and, j) In-school detention or suspension, during lunchtime, after school, or on weekends. Other : 1)Requires the SPI at the beginning of each school year, to 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. 2)Encourages all local educational agencies to collect data related to pupil experiences with discrimination, harassment, intimidation, and bullying each year and specifies that the data may be collected through annual participation in the California Healthy Kids Survey (CHKS) or through participation in the California Student Survey (CSS). AB 9 Page 7 3)Requires the CDE, in the next revision of either the CHKS or, if that is not feasible, in the next revision of the CSS, 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 the Penal Code, any of the actual or perceived characteristics listed in the Education Code (EC), 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. 4)Requires the CDE to 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, any of the actual or perceived characteristics listed in the EC, 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. 5)Makes several findings and declarations stating the public policy of the state in various aspects, including affording safe school environments and providing support and interventions for youth that are victimized by or engaged in discrimination, harassment, intimidation, or bullying. 6)Finds and declares that it is the intent of this bill to clarify existing law and that under existing case and statutory law, a school district and school can 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 that the school district or school knew or reasonably should have known about. 7)States that this bill shall not be construed to limit pupil rights to free speech as protected by the United States Constitution, the California Constitution, and the EC, and AB 9 Page 8 other applicable law, nor shall this act be construed to require an exhaustion of any administrative complaint process before civil law remedies may be pursued. EXISTING LAW : 1)Prohibits a teacher from giving instruction, and a school district from sponsoring any activity that promotes a discriminatory bias because of disability, gender, nationality, race or ethnicity, religion, or sexual orientation. 2)Prohibits discrimination on the basis of, disability, gender, nationality, race or ethnicity, religion, sexual orientation or any other characteristic that is contained in the definition of hate crimes as set forth in the Penal Code, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid. 3)Defines "hate crime" as a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: disability, gender, nationality, race or ethnicity, religion, sexual orientation, and association with a person or group with one or more of these actual or perceived characteristics (Penal Code 422.55). 4)Defines disability, gender, nationality, race, ethnicity, religion, and sexual orientation. 5)Establishes the Hate Violence Prevention Act and authorizes the State Board of Education (SBE) at the request of the SPI to adopt policies directed toward creating a school environment in kindergarten and grades one to twelve that is free from discriminatory attitudes and practices and acts of hate violence, and to revise as needed the state curriculum frameworks and guidelines and the moral and civic education curricula to include human relations education, with the aim of fostering an appreciation of the diversity of California's population and discouraging the development of discriminatory attitudes and practices. 6)Requires the CDE to monitor adherence to anti-discrimination and anti-harassment policies as part of its regular monitoring AB 9 Page 9 and review of local educational agencies through the Categorical Program Monitoring process. Requires the CDE to assess whether local educational agencies have done all of the following: a) Adopted a policy that prohibits discrimination and harassment based on the specified characteristics. b) Adopted a process for receiving and investigating complaints of discrimination and harassment. c) Publicized antidiscrimination and antiharassment policies, including information about the manner in which to file a complaint, to pupils, parents, employees, agents of the governing board, and the general public. d) Posted antidiscrimination and antiharassment policies in all schools and offices, including staff lounges and pupil government meeting rooms. e) Maintained documentation of complaints and their resolution for a minimum of one review cycle. f) Ensured that complainants are protected from retaliation and that the identity of a complainant alleging discrimination or harassment remains confidential, as appropriate. g) Identified a responsible local educational agency officer for ensuring district compliance with non-discrimination. 7)Encourages school districts, county offices of education, law enforcement agencies, and agencies serving youth to develop and implement interagency strategies, in-service training programs, and activities that will improve school attendance and reduce school crime and violence, including vandalism, drug and alcohol abuse, gang membership, gang violence, hate crimes, bullying, including bullying committed personally or by means of an electronic act, teen relationship violence, and discrimination and harassment, including, but not limited to, sexual harassment. 8)Prohibits the suspension, or recommendation for expulsion, of a pupil from school unless the principal determines that the pupil has committed any of various specified acts, including but not limited to bullying and bullying by means of an electronic act, as defined. 9)Defines "bullying" as one or more acts by a pupil or group of pupils engaging in sexual harassment, hate violence, harassment, threats, or intimidation. AB 9 Page 10 10)Authorizes the superintendent of a school district or a principal to use his or her discretion to provide alternatives to suspension or expulsion, including, but not limited to, counseling and an anger management program, for a pupil subject to discipline through the enumerated acts that constitute grounds for suspension or expulsion. 11)Provides that suspension shall be imposed only when other means of correction fail to bring about proper conduct, but authorizes a pupil be suspended for any of the reasons enumerated in existing law upon a first offense, if the principal or superintendent of schools determines that the pupil committed a specific act or that the pupil's presence causes a danger to persons or property or threatens to disrupt the instructional process. 12)Authorizes a teacher of any class from which a pupil is suspended to require the suspended pupil to complete any assignments and tests missed during the suspension. 13)Provides that as part of or instead of disciplinary action, a principal, a principal's designee, a superintendent of school or a governing board may require a pupil to perform community service on school grounds, or with written permission of the parents or guardians, off school grounds, during the pupil's non-school hours. 14)Stipulates that public schools pupils shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous. Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school. FISCAL EFFECT : Unknown AB 9 Page 11 COMMENTS : School-based harassment, discrimination, intimidation and bullying can create a school climate of fear and disrespect that can result in conditions that negatively affect learning. California's EC has clear policies prohibiting discrimination and harassment, however some would argue that enforcement of those policies could be strengthened. This bill expands on existing provisions and incorporates anti-harassment and anti-bullying approaches that schools should actively implement. In an effort to address issues of discrimination, harassment intimidation and bullying, this bill requires district policies, complaint procedures, and professional development, and alternative discipline. Additionally, this bill encourages data collection on such incidents, and requires the SPI to post resources that provide support to youth who have been subjected to discrimination, harassment intimidation and bullying. The author states, "Research shows that students who are harassed at school frequently suffer long-term social, emotional, and psychological harm. The most effective way to reduce the harm is to create a school-wide culture of inclusion and respect for differences. Existing law does not adequately protect young people from school-based discrimination and harassment. AB 9 will ensure that existing laws are effective and enforced by requiring every school district to take concrete steps to improve school climate." According to information provided by the sponsors of this bill, "In September 2010, 13-year old Seth Walsh tragically took his own life after years of relentless harassment based on his sexual orientation and gender expression. Seth's mother and close friends report that teachers and school administrators were aware that Seth was being harassed and, in some instances, participated in the harassment. Yet Seth's mother's pleas to the school for help were brushed aside." The sponsors further contend, "Every day young people in California schools are subjected to discrimination, harassment, intimidation, or bullying based upon actual or perceived sexual orientation, gender identity or expression, gender, race or ethnicity, nationality, religion, disability, or association with a person or group with one or more of these actual or perceived characteristics." This bill attempts to comprehensively address these situations and create school environments where tragedies like the one noted above can be prevented. School district policies and notification requirements : This AB 9 Page 12 bill outlines very specific components that must be included in district policies prohibiting discrimination, harassment, intimidation and bullying. Existing provisions in the EC prohibit discrimination and harassment based on specified characteristics and this bill adds intimidation and bullying to the prohibited activities that school districts should address. Districts should indeed have clear policies to maintain safe schools free of discrimination, harassment, intimidation and bullying, however some would argue that requirements imposed by this bill relative to the policy and the contents of the policy leave little flexibility for local districts to tailor their policies based on local needs or to modify them in the future, and they would argue that the contents of these policies should rather be determined at the local level through collaborative processes with interested parties such as teachers, school administrators, students, families and others from the community, so as to address local conditions and needs. Others would argue that districts need and want specificity from the state on the development of such policies because oftentimes districts are not clear on how to address these issues. This bill requires the policy to be posted and publicized, on or before July 1, 2012, in all parent-student handbooks, on the school district's and every school's Internet Web site, and in all district and school administrative offices. Additionally, this bill requires the posting of the following statement in all teacher lounges, staff rooms, classrooms, gyms, locker rooms, bathrooms, and cafeterias in each school: "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 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." AB 9 Page 13 This bill requires the policy and the statement to be translated if 15% or more of the pupils enrolled in a school speak a single primary language other than English, as specified, and requires the posting in English and in the translated languages. The contents of this statement are very specific and since the statement will be posted in all kindergarten through grade 12 (K-12) schools and classrooms, it is unlikely that this statement will be comprehensible to all pupils, particularly the younger ones. Staff recommends the bill be amended to delete the specific language of the statement and rather require school districts to post a statement of notification that is age-appropriate and easily understandable to the pupils of the classroom and the school where it will be posted. It is very important that pupils are aware and understand, at an early age, that these types of behaviors are unacceptable, thus the notification statement can be more effective if it is understandable to the target audiences. Complaint process : Currently, LEAs are required to investigate and seek to resolve complaints using policies and procedures known as the Uniform Complaint Procedures (UCP). Unlawful discrimination complaints may be based on actual or perceived sex, sexual orientation, gender, ethnic group identification, race, ancestry, national origin, religion, color, or mental or physical disability, or age, or on a person's association with a person or group with one or more of these actual or perceived characteristics, in any program or activity that receives or benefits from state financial assistance. The UCP may also be used when addressing complaints alleging failure to comply with state and/or federal laws in various programs. This bill requires school districts to include in its process for receiving and investigating complaints under the UCP all complaints of discrimination, harassment, intimidation, and bullying and requires the process to include additional specific components, one of which is a shorter time frame to investigate and respond to complaints. One of the other requirements of the complaint process is the publication of a written complaint form that includes very specific components and information, such as questions and descriptions about the incident, and statements about various aspects of the complaint process. With all the information that is required to be included in the form, the potential exists that this form may be overwhelmingly long, intimidating, and in AB 9 Page 14 some cases impossible to be used by pupils. While the bill does provide for alternatives whereby pupils can make non-written complaints, the forms or mechanisms used for pupils to report incidents should be user-friendly, age-appropriate and should be written in ways that can be easily understood by pupils of all ages. Thus it may be prudent to give local school districts flexibility in the design of the forms or other tools used to report complaints. Staff recommends the bill be amended to delete the existing contents of the form and instead provide general parameters that districts should follow to ensure the processes for pursuing complaints or reporting bullying activity are accessible to all pupils. The bill could specify that forms or processes that are developed for purposes of submitting complaints or reporting discrimination, intimidation, harassment or bullying activity should be age-appropriate, easily understandable, translated into the primary languages of pupils that speak a language other than English and/or other similar parameters. When processes are so rigid they can often dissuade victims or targets from utilizing the processes that were established to protect them. Professional development : A key aspect to addressing harassment, discrimination, intimidation and bullying is to have adequate training of school personnel on preventing and responding to bullying, harassment, discrimination, and intimidation, as well as on developing positive classroom and school environments. This bill requires school districts to offer professional development training that covers various topics including techniques for intervening in discrimination, harassment, intimidation and bullying, and creating a school wide culture of inclusion and respect. This bill does not specifically mention prevention education as part of the techniques that this professional development should address. Prevention education could then be incorporated into curriculum and school activities which can have a positive impact on the overall school culture. Staff suggests the bill be amended to specify that prevention education should be part of the professional development required by this bill. Furthermore, this bill should specify that professional development should be designed to ensure the content is relevant to teachers according to the grade levels they teach. In a time of severe fiscal crisis, it is uncertain that districts will have discretionary funds for purposes of new professional development. Nonetheless, an investment in AB 9 Page 15 professional development and training can make a significant difference in addressing issues of harassment, discrimination, intimidation and bullying and in creating a schoolwide culture of respect and inclusion. Discipline : Current law enumerates a number of offenses that can be grounds for suspension or expulsion of a pupil, and it includes harassment, intimidation and bullying - whether in person or by means of an electronic act- and defines "bullying" as one or more acts by a pupil or group of pupils involving any of the following: 1. Sexual harassment, as defined, that is considered by a reasonable person of the same gender as the victim to be sufficiently severe or pervasive to have a negative impact upon the individual's academic performance or to create an intimidating, hostile, or offensive educational environment; 2. Causing, attempting to cause, threatening to cause or participating in an act of, hate violence, as defined; and 3. Intentionally engaging in harassment, threats, or intimidation, directed against school district personnel or pupils, that are 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 specifies a process for dealing with incidents of discrimination, bullying, intimidation, and harassment that is different and separate from that specified for all other offenses that also constitute grounds for suspension or expulsion, thus requiring that school administrators treat some of the enumerated offenses differently from the others. This bill requires pupils that are found to have committed an act of discrimination, harassment, intimidation, or bullying, as specified, to be subject to alternative discipline prior to suspension or expulsion, and requires pupils to be subject to suspension only if that pupil has access to and is given the opportunity to make up missed coursework without academic penalty. Alternative discipline, as defined by this bill means disciplinary action other than suspension or expulsion and AB 9 Page 16 giving the pupil notice of the inappropriateness of the behavior, teaching the pupil appropriate behavior, and instituting more severe responses for repeated misbehavior while retaining the pupil in class or school and specifies a list of 10 activities that comprise alternative discipline. The provisions of this bill could potentially limit an administrator's ability to suspend or expel a pupil under certain circumstances. Since teachers are not currently required to provide missed coursework to suspended pupils, allowing suspension only if pupils are able to make up work, might result in a principal's inability to suspend or expel a pupil when that pupil has committed an act of discrimination, bullying, intimidation or harassment, regardless of the severity of the action. Additionally, by requiring- prior to suspension and expulsion- the application of alternative discipline (writing a reflective essay, counseling, etc.) in incidents of discrimination, harassment, intimidation and bullying, even in cases in which the offense might be severe, this bill might place some restrictions on administrators to discipline as they best see fit and can create the perception that committing an act of discrimination, harassment, intimidation and bullying are tolerable offenses because they do not result in suspension/expulsion. This can potentially incite more of this type of behavior, which would be contrary to the intent of this bill. In October of 2010 the United States Department of Education Office for Civil Rights issued a "Dear Colleague" letter on bullying and harassment which notes that school districts may be violating civil rights statutes and the implementing regulations when "peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees." The letter further advises that the label used to describe an incident should not determine how a school is obligated to respond but rather the nature of the conduct itself must be assessed for civil rights implications. Considering that the degree of the offense in situations of discrimination, harassment intimidation and bullying can vary widely in every situation, it might not be prudent to set in statute a policy to address incidents of discrimination, harassment, intimidation and bullying that leaves little flexibility for principals and superintendents to AB 9 Page 17 address the situation as they deem appropriate. Furthermore, creating a carve out that requires the application of alternative discipline strategies on certain offenses but not others can raise questions regarding the potential this policy creates for harsher disciplinary action to be applied for seemingly less severe offenses and vice versa. For example, a pupil that caused or attempted to cause damage to school property could be facing suspension or expulsion. But if a pupil harassed and caused emotional suffering on another pupil, that pupil would be subject to alternative discipline (writing a reflective essay, counseling, etc.). In this situation, one could argue that harming a person's emotions, and if the offense was based on one of the protected categories, violating someone's civil rights, is a more severe offense than damaging property, yet the latter offense would be penalized in a more severe manner and the former by less severe consequences. Arguments have been made that suspension is not the way to address or change behavior and that suspension and expulsion pushes pupils out of school and alienates them without changing their behavior. Existing law already includes provisions relative to alternative discipline by stipulating that suspension shall only be imposed when other means of correction have failed, and by giving principals and superintendents the discretion to provide alternatives to suspension or expulsion, including, but not limited to, counseling and anger management programs. Additionally, current law authorizes as part of, or instead of, disciplinary action, a principal to require a pupil to perform community service, except in cases of a pending expulsion. The intent of these provisions of this bill is to create mechanisms by which to address the root causes of misbehavior and to encourage the use of interventions for pupils that engage in acts of discrimination, harassment, intimidation and bullying. While age-appropriate alternatives to suspension and expulsion should have a role in discipline processes, as currently drafted this bill creates the potential for unintended consequences that may be contrary to the intent of this bill. Staff recommends the bill be amended to delete the requirement for principals and superintendents to implement alternative discipline, as specified, and to instead strengthen and expand the existing provisions relative to alternative discipline in current law to include, but not be limited to, the activities enumerated by this bill that are not already in current law. AB 9 Page 18 Additionally, the bill could authorize principals and superintendents to require pupils to complete one or more of those activities, or others, in lieu of, or in addition to suspension/expulsion for any of the existing enumerated acts in the suspension/expulsion section of the EC. This would allow a level of flexibility for principals and superintendents to discipline based on the nature of the offense and in consideration of age-appropriate expectations, rather than institute very specific requirements for some of the listed offenses that gives no regard to the severity of the offense. This bill stipulates that a pupil who is the target of an act of discrimination, harassment, intimidation, or bullying shall not be automatically disciplined for defending himself or herself against one of the aforementioned acts, unless the superintendent or principal deems discipline appropriate. The sponsors of the bill point to situations in which pupils that have been targets of bullying have been subject to suspension when that pupil defends himself or herself. The provisions of this bill are intended to underscore the distinction between pupils who are victims of bullying and those who perpetrate bullying. Both are deemed to be "engaged in an act of bullying" under existing discipline policies. If the author agrees to amend this bill as suggested above, the section of this bill dealing with discipline of victims, should be amended to conform to the so amended provisions of alternative discipline. Other provisions : This bill requires the SPI at the beginning of each school year, to 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. This could be very valuable information for pupils and families and while the statewide resources could be compiled by the SPI, it is unclear as to whether the SPI might be able to gather information on community-based organizations specifically for each school district. This bill encourages all local educational agencies to collect data related to pupil experiences with discrimination, harassment, intimidation, and bullying each year and specifies that the data may be collected through annual participation in the CHKS or through participation in the CSS. The federal AB 9 Page 19 funding that had been used for purposes of the CHKS has been exhausted hence the prospects of the survey are uncertain. This bill also requires the CDE, in the next revision of either the CHKS or the CSS, to include specified questions and requires local educational agencies to survey their pupils with those questions. Because there are no funds for the survey, it is not clear that the CHKS will be revised any time soon. Arguments in support : Californians for Justice writes, "California has recognized this pervasive problem by enacting laws to protect students from bullying, harassment and discrimination based on many factors, including sexual orientation and gender identity/expression in schools. However, current laws do not give enough guidance on preventing and addressing bullying. Research has shown that student misconduct can be reduced when everyone knows what constitutes misconduct, who to report it to, and how to address it. AB 9 does just that by providing California schools specific tools to prevent and address the pervasive problem in order to create a safe school environment for all students." Related legislation : AB 630 (Hueso) encourages school districts to establish programs to be integrated either into the regular curriculum or through separate instruction during National Bullying Prevention Month for a minimum of one class period each day, or a minimum of five hours, at the discretion of each school district, to reduce bullying through training with appropriate activities and best practices. AB 630 is pending in this Committee. AB 1156 (Eng) amends the development of school safety plans to include training of schoolsite personnel in the prevention of bullying, amends residency requirements for school district attendance to include a pupil who has been the victim of bullying by another pupil of that district, as determined by personnel of their district, and expands authorization of suspension or expulsion for acts of "bullying" to include those acts that are or can be reasonably predicted to effect physical, mental health, academic performance, participation, or fear of harm of the pupil. AB 1156 is pending in this Committee. SB 453 (Correa) expands authorization of suspension or expulsion for acts of bullying to include those acts motivated by any of the following actual or perceived characteristics of the victim: AB 9 Page 20 disability, gender, 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 includes acts of bullying that have persisted and reoccurred despite repeated efforts at remediation and termination of the behavior by the principal or the superintendent of schools on the list of acts for which expulsion may be recommended. SB 453 is pending in the Senate Education Committee. AB 414 (Carter) requires a teacher to provide appropriate homework to a pupil in grades fourth through eighth who has been suspended from school for three schooldays or less when the request is made by a parent, legal guardian or the suspended pupil. AB 414 is pending in the Assembly Appropriations Committee. Previous Legislation : AB 86 (Lieu), Chapter 646, Statutes of 2008, added bullying and bullying by means of an electronic act to the list of reasons for which a student may be suspended or recommended for expulsion. SB 777 (Kuehl), Chapter 569, Statutes of 2007, clarifies and creates uniform non-discrimination standards and definitions within the state's Education Code to ensure consistency with the general prohibition against educational discrimination and with the protected characteristics under the Penal Code definition of "hate crime." AB 394 (Levine) Chapter 566, Statutes of 2007, establishes the Safe Place to Learn Act and requires the California Department of Education (CDE) to monitor adherence to antidiscrimination and antiharassment policies, as specified. AB 537 (Kuehl), Chapter 587, Statutes of 1999, established the California Student Safety and Violence Prevention Act. AB 537 added the following two new forms of discrimination to the existing prohibitions against discrimination and harassment in California public schools: actual or perceived sexual orientation and actual or perceived gender. REGISTERED SUPPORT / OPPOSITION : Support Equality California (co-sponsor) AB 9 Page 21 Gay-Straight Alliance Network (co-sponsor) The Trevor Project (co-sponsor) Aids Legal Referral Panel Anti-Defamation League California Communities United Institute California National Organization for Women California Police Chief Association Californians for Justice Lawyers' Committee for Civil Rights of the San Francisco Bay Area Legal Services for Children National Council of La Raza Public Advocates Safe Passages San Diego Unified School District San Francisco Chapter of the Japanese American Citizens League San Francisco Unified School District Youth Law Center Opposition None on file. Analysis Prepared by : Marisol Aviņa / ED. / (916) 319-2087