BILL ANALYSIS Ķ
AB 9
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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
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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
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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
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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;
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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
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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).
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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
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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
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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.
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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
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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
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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."
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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
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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
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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
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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
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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.
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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
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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:
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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)
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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