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 




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               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  




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           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 




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                         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 




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               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 




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               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.  





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           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 




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               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




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          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.