BILL ANALYSIS Ó AB 746 Page 1 ASSEMBLY THIRD READING AB 746 (Campos) As Amended April 7, 2011 Majority vote EDUCATION 7-1 ----------------------------------------------------------------- |Ayes:|Brownley, Ammiano, | | | | |Buchanan, Butler, Carter, | | | | |Eng, Williams | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Wagner | | | | | | | | ----------------------------------------------------------------- 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 AB 746 Page 2 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 AB 746 Page 3 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 AB 746 Page 4 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 FN: 0000180