BILL ANALYSIS Ó SENATE COMMITTEE ON EDUCATION Alan Lowenthal, Chair 2011-12 Regular Session BILL NO: AB 9 AUTHOR: Ammiano AMENDED: June 14, 2011 FISCAL COMM: Yes HEARING DATE: June 22, 2011 URGENCY: No CONSULTANT:Beth Graybill SUBJECT : Pupil rights: Bullying. SUMMARY This bill requires a school district to include specific information in its policies and procedures regarding discrimination, harassment, intimidation, and bullying. This bill also requires the policies to include complaint procedures and alternative discipline policies for pupils who engage in this behavior. BACKGROUND Existing law, the California Student Safety and Violence Prevention Act, prohibits harassment and other forms of discrimination, including on the basis of actual and perceived sexual orientation and gender in educational instructional services and programs. (Education Code § 200 et seq.) The Safe Place to Learn Act (SPLA) requires the California Department of Education (CDE) to monitor local educational agencies (LEAs) adherence to antidiscrimination and antiharassment policies. Under this act, the CDE is required, as part of its Categorical Program Monitoring (CPM) process, to assess whether LEAs have done all of the following: a) Adopted a policy that prohibits discrimination and harassment based, as specified, under current law, including, but not limited to, actual or perceived gender identity and sexual orientation. b) Adopted a process for receiving and investigating complaints of discrimination based on current law, as AB 9 Page 2 specified above. c) Publicized antidiscrimination and antiharassment policies, including 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 the schools and offices, including staff lounges and pupil 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 the identity of a complainant alleging discrimination or harassment remains confidential, as appropriate. g) Identified a responsible LEA officer for ensuring district or office compliance with the requirement of the uniform complaint process. The SPLA also requires CDE to display information on curricula and other resources that specifically address bias-related discrimination and harassment, as specified under current law (including, but not limited to, actual or perceived gender identity and sexual orientation), on the California Healthy Kids Resource Center Internet Web site. The CDE is also required to develop a handout describing the rights and obligations of existing law as it relates to discrimination and the policies addressing bias-related discrimination and harassment in schools and post the handout on the CDE Internet Web site. (EC § 234 et seq.) Existing law specifies that no person shall be subjected to discrimination on the basis of disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of 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 financial aid. (EC § 220) ANALYSIS AB 9 Page 3 This bill , commencing on July 1, 2012: 1) Specifies it is the policy of the State to ensure that local educational agencies continue to work to reduce violence, intimidation, and bullying. 2) Requires the CDE, as part of its CPM process, to assess whether local educational agencies have done all of the following: a) Adopted a policy that prohibits discrimination, harassment, intimidation, and bullying based on actual or perceived characteristics 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. The policy shall include 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. b) Adopted a process for receiving and investigating complaints of discrimination, harassment, intimidation, and bullying based on any actual or perceived characteristics 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. Specifies that the complaint process must include but is not limited to: i) A requirement that, if school personnel witness an act of discrimination, harassment, intimidation, or bullying, he or she shall take immediate steps to intervene when safe to do so. ii) A timeline to investigate and resolve complaints of discrimination, harassment, intimidation or bullying that shall be followed by all schools under the AB 9 Page 4 jurisdiction of the school district. iii) An appeal process afforded to the complainant should he or she disagree with the resolution of a complaint filed. iv) Forms developed pursuant to this process must be available in the primary language of students, as specified. c) Publicized adopted antidiscrimination, antiharassment, anti-intimidation, and antibullying policies. Requires a school district to publish the policy in all parent-student handbooks issued in the school district and include a statement about where pupils and parents can obtain a complaint form and requires a district to publish the policy and information about where a complaint form can be obtained in the district's Internet Web site and all individual school Web sites as applicable. d) Requires school districts to ensure that complaints alleging discrimination, harassment, intimidation, or bullying are confidential. 3) Requires the CDE to include discrimination, harassment, intimidation, or bullying information in the model handout. 4) Expresses the intent of the Legislature that school districts provide grade-level appropriate, professional development training to school personnel to implement the school district policy that prohibits discrimination, harassment, intimidation, and bullying. 5) Requires the Superintendent of Public Instruction (SPI) 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. 6) Specifies that the act shall not be construed to limit AB 9 Page 5 pupil rights to free speech as specified. 7) Specifies that the act shall not be construed to require an exhaustion of any administrative complaint process before civil law remedies may be pursued. 8) Makes a number of findings and declarations regarding the State's commitment to a safe and civil educational environment, the effects of discrimination, harassment, intimidation and bullying, and specifies its intent to clarify and supplement existing law on discrimination, harassment, intimidation, and bullying in public schools. 9) Provides for local educational agencies to be reimbursed for costs associated with complying with the requirements of this act if the Commission on State Mandates determines that the act contains mandated costs. STAFF COMMENTS 1) Need for the bill : According to the author's office, "California has taken some steps to address discrimination, harassment, intimidation, and bullying, but we must do more to remedy the glaring gaps in existing law. AB 9 draws upon tested approaches and best practices to ensure that schools have adequate policies and procedures in place to prevent discrimination and harassment and respond to incidents quickly." The sponsor of this bill, Equity California, detail the story of Seth Walsh, a 13 year-old boy in Tehachapi, California who committed suicide in September 2010 after experiencing persistent and long-term bullying due to his sexual orientation and gender expression. Specifically, Equality California states: "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." 2) Bullying and harassment . A 2007 report from the National Association of Attorneys General Task Force on AB 9 Page 6 School and Campus Safety noted that bullying is an important issue in examining school violence and recommended states continue to implement and expand bullying prevention measures. A publication from the U.S. Department of Justice Office of Juvenile Justice and Delinquency Programs (OJJDP) notes that bullying can take three forms: physical, verbal, and psychological and can have short-term and long-term psychological effects on both those who bully and those who are bullied. Long-term consequences have also been linked to increases in criminal behavior and substance abuse. A 2001 report by the National Institute of Child Health and Human Development (NICHD) estimated that 1.6 million children in grades 6 through 10 in the United States are bullied at least once a week and 1.7 million bully others frequently. According to the OJJDP, a study of 6,500 middle school students in South Carolina revealed that 23% said they had been bullied regularly during the previous three months. In contrast to measures this Committee has considered on bullying and cyber-bullying that focused on student discipline, this bill focuses on policies and procedures concerning bias-related behaviors and how those policies and procedures are communicated across and throughout a school district. 3) Mandated costs . According to the Assembly Appropriations Committee analysis, this bill has General Fund/Proposition 98 state reimbursable mandated costs, likely between $350,000 and $600,000 to school districts to modify existing policies, as specified. In 2009-10, there were 1,021 school districts statewide with 9,888 schools under their jurisdiction. In addition, this bill would result in General Fund administrative costs to the CDE, likely between $100,000 and $200,000 to modify the CPM process, provide information to school districts, and post required information on its Internet Web site. The Committee has previously expressed concern about imposing new mandates on school districts in the current fiscal climate. Notwithstanding the potential benefits the requirements could have in improving school safety, the Committee may wish to consider whether this bill imposes a new financial burden on districts at a time when they are anticipating significant revenue reductions. AB 9 Page 7 4) Related and prior legislation . SB 453 (Correa) expands the definition of bullying to include acts motivated by specified actual or perceived characteristics of the victim, adds bullying, as specified, to the list of acts for which expulsion may be recommended, and requires school safety plans to include policies and procedures relating to bullying. This measure was passed by this Committee on a 7-0 vote. SB 755 (Lieu) makes numerous changes to the requirement that each school have a school safety plan, imposes new penalties for schools and districts that fail to meet these requirements, and requires school districts and county offices of education to be responsible for the development of school safety plans, as specified. This bill was passed by this Committee on a 7-2 vote. SB 919 (Lieu) defines sexting as the sending or receiving of sexually explicit pictures or video images via an electronic act and adds sexting to the list of acts for which a pupil may be suspended or expelled. This bill was passed by this Committee on a 10-0 vote. AB 227 (Hall) adds the prevention of cyberbullying, content control software, and the responsible use of mobile communication technology to the components that are required to be included in existing guidelines and criteria for developing school district educational technology plans. This measure is pending in this Committee. AB 630 (Hueso), a two-year bill in the Assembly Education Committee, encourages school districts to reduce bullying through training programs that would educate pupils by increasing their awareness of bullying. AB 1156 (Eng) requires the training of schoolsite personnel in the prevention of bullying, allows a child who is a victim of an act of bullying to meet residence requirements in another district, and expands the definition of bullying to include various specified acts. This measure is pending in this Committee. AB 86 (Lieu, Chapter 646, 2008) defined bullying to mean acts AB 9 Page 8 that are committed personally or electronically, acts directed against another pupil that constitutes sexual harassment, hate violence, severe or pervasive intentional harassment, threats, or intimidation and gave school officials grounds to suspend a pupil or recommend a pupil for expulsion for bullying. This bill was passed by this Committee on a 7-2 vote. SUPPORT Advancement Project American Civil Liberties Union Anti-Defamation League Asian Pacific American Legal Center Books not Bars California Association of School Councilors California Coalition for Youth California Communities United Institute California Faculty Association California Foundation for Independent Living Centers California National Organization for Women California Police Chiefs Association California Psychological Association California PTA California School Health Centers Association Californians for Justice Capitol Resource Family Impact City of West Hollywood Community United Against Violence Disability Rights California Equal Rights Advocates Equity California Gay-Straight Alliance Network Lawyers Committee for Civil Rights of the San Francisco Bay Area Legal Services for Children Lieutenant Governor Gavin Newsom National Association of Social Workers National Center for Lesbian Rights National Council of La Raza Oakland Unified School District Peace Partners Public Advocates Public Counsel Law Center Sacramento Gay and Lesbian Center Safe Passages AB 9 Page 9 San Diego Unified School District San Francisco Japanese American Citizens League San Francisco Unified School District State Board of Equalization member Betty T. Yee The Arc and United Cerebral Palsy in California The Center Orange County The Trevor Project Youth Law Center OPPOSITION None received.