BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 746
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          ASSEMBLY THIRD READING
          AB 746 (Campos) 
          As Amended  April 7, 2011
          Majority vote 

           EDUCATION           7-1                                         
           
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          |Ayes:|Brownley, Ammiano,        |     |                          |
          |     |Buchanan, Butler, Carter, |     |                          |
          |     |Eng, Williams             |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner                    |     |                          |
          |     |                          |     |                          |
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           SUMMARY  :  Specifies that bullying by means of an electronic act 
          includes a post on a social network Internet Web site.  
          Specifically,  this bill  :  

          1)Expands the definition of an "electronic act" to include a 
            post on a social network Internet Web site.  

          2)Adds bullying through "the posting of messages on a social 
            network Internet Web site" to the list of issues school 
            districts are encouraged to address within their strategies to 
            improve school attendance and reduce school crime and 
            violence.

           FISCAL EFFECT  :  This bill is keyed non-fiscal.

           COMMENTS  :  AB 86 (Lieu), Chapter 646, Statutes of 2008, added 
          bullying, including bullying by means of an electronic act to 
          the list of reasons for which a student may be suspended or 
          recommended for expulsion.  An electronic act is defined as the 
          transmission of a communication, including, but not limited to, 
          a message, text, sound, or image by means of an electronic 
          device, including, but not limited to, a telephone, wireless 
          telephone or other wireless communication device, computer, or 
          pager.  This bill adds posts on a social network site to the 
          definition of an electronic act.

          A "social network site" is not defined in the bill, but 
          according to Social Network Sites: Definition, History, and 
          Scholarship by Danah M. Boyd and Nicole B. Ellison (Michigan 








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          State University, 2007), "a social network site is a web-based 
          service that allows individuals to (1) construct a public or 
          semi-public profile within a bounded system, (2) articulate a 
          list of other users with whom they share a connection, and (3) 
          view and traverse their list of connections and those made by 
          others within the system.  The nature and nomenclature of these 
          connections may vary from site to site."  
           
           Can school officials discipline a student based on speech or 
          actions that were not conducted at school?  Would such 
          discipline violate the student's freedom of speech?  Existing 
          law states that a pupil may be suspended or expelled for any of 
          the specified acts and related to school activity or attendance 
          that occur at any time, including: while on school grounds, 
          while going to or coming from school, during the lunch period 
          whether on or off the campus, and during, or while going to or 
          coming from, a school sponsored activity (Education Code (EC) 
          Section 48900).  Existing law also states that a pupil may be 
          suspended or expelled if the pupil has intentionally engaged in 
          harassment, threats, or intimidation, directed against school 
          district personnel or pupils, that is 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 (EC 
          Section 48900.4).  

          The courts have ruled that disciplinary action as a result of 
          bullying via a social network site is contingent on whether the 
          action causes a substantial disruption to school activities or 
          work of a school, regardless of where the action took place.  If 
          a student is suspended or expelled and the activity is not found 
          to have caused substantial disruption, it could constitute a 
          violation of freedom of speech.  This is based on the 1969 case 
          of Tinker v. Des Moines Independent Community School District 
          (393 U.S. 503, 506; 1969).  

          Examples:  In the 2010 case of J.C. v. Beverly Hills Unified 
          School District, (CV 08-03824 SVW) a student posted a video of 
          her friends off campus insulting a fellow classmate; the 
          classmate went to a counselor in tears and not wanting to attend 
          class.  The student behind the camera was suspended for two days 
          by the principal.  The suspended student, with her parents, 
          filed a lawsuit against the school district and school staff in 
          federal court.  The court ruled the video impacted the harassed 








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          classmate but did not result in a substantial disruption of 
          school activities and therefore the suspension constituted a 
          violation of free speech.   

          In the 2002 Pennsylvania case of J.S. v. Bethlehem Area School 
          District, (807 A.2d 803 (Pa. 2002)) a teacher was frightened to 
          where she was no longer able to teach for the remainder of the 
          school year after discovering a student's Web site where the 
          teacher's life was threatened with words and gruesome images.  
          The student was expelled.  Other students were affected both by 
          the volatile Web site and by the teacher's departure, while 
          parents voiced disapproval of the series of substitute teachers 
          that replaced the teacher.  The expelled student and his/her 
          parents filed the lawsuit against the school district.  The 
          court ruled that "the web site created disorder and 
          significantly and adversely impacted the delivery of instruction 
          . . . to a magnitude that satisfies the requirements of Tinker." 
           The court, therefore, saw the Web site as causing a substantial 
          disruption to school activity.  
           
           Nationwide:  According to the National Conference of State 
          Legislatures (NCSL), in 2008, Kansas added cyber bullying to 
          school districts' anti-bullying policies defining cyber bullying 
          as bullying by use of any electronic communication device, 
          including blogs.  NCSL also reports that in 2008, the Maryland 
          Legislature required the State Board of Education to develop a 
          model policy which defines bullying to include electronic 
          communication that creates a hostile education environment by 
          substantially interfering with a student's educational benefits, 
          opportunities, or performance, or with a student's physical or 
          psychological well-being.                                        
                                                                           
                                                                           
                                                                           
              
           
           It can be argued that existing law already allows suspension and 
          expulsion for bullying using social network sites because 
          postings are done with computers and the definition of 
          electronic act includes transmission of communication through 
          computers.  Further, the author that established the definition 
          of an electronic act (AB 86) made this statement regarding his 
          proposed legislation, which shows his intent to include social 
          network sites:  "As web-based social networking sites, such as 
          Myspace and Facebook become more and more popular, cyber 








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          bullying has become a problem for school districts and 
          youth-based organizations."  

          Arguments in Support:  The author of this bill states that this 
          bill "recognizes both the tremendous leap in popularity of 
          social networking sites since the inception of our anti-bully 
          law, and the potential that the resulting popularity has in 
          increased ability for cyber bullies to spread their messages, by 
          making clear that posting messages upon a social network site is 
          covered under the Education Code anti-bullying provisions."  

          Harassment may take place off campus, but the effects on the 
          student are endured daily on campus, and in the presence of 
          their harasser or harassers.  In the case of one New York high 
          school student, the student was harassed online through a social 
          network site.  The online harassment led the high school senior 
          to commit suicide only a few months before graduation.
           
           
           Analysis Prepared by  :    Tania Herrera and Sophia Kwong Kim / 
          ED. / (916) 319-2087 


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