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