BILL ANALYSIS                                                                                                                                                                                                    Ó


          |SENATE RULES COMMITTEE            |                   AB 746|
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                                 THIRD READING

          Bill No:  AB 746
          Author:   Campos (D)
          Amended:  4/7/11 in Assembly
          Vote:     21

           SENATE EDUCATION COMMITTEE  :  9-1, 6/8/11
          AYES:  Lowenthal, Runner, Alquist, Blakeslee, Hancock, Liu, 
            Price, Simitian, Vargas
          NOES:  Huff
          NO VOTE RECORDED:  Vacancy

           ASSEMBLY FLOOR  :  53-5, 4/14/11 - See last page for vote

           SUBJECT  :    Pupils:  cyber bullying

           SOURCE  :     Author

           DIGEST  :    This bill specifies that bullying by means of an 
          electronic act includes a post on a social network Internet 
          Web site.

           ANALYSIS  :    Existing law, the Interagency School Safety 
          Demonstration Act of 1985, establishes the School/Law 
          Enforcement Partnership comprised of the Superintendent of 
          Public Instruction (SPI) and the Attorney General for the 
          development and administration of safe school programs and 
          encourages school districts, county offices of education, 
          law enforcement agencies, and agencies serving youth to 
          develop and implement strategies, in-service training 
          programs, and activities that will improve school 


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          attendance and school safety.  

          Existing law prohibits the suspension or the recommendation 
          of a pupil for expulsion from school unless a school 
          district superintendent or the principal of the school 
          determines that the pupil has committed certain specified 
          acts, including having engaged in an act of bullying and 
          bullying committed by means of an electronic act.  Existing 
          law specifies that an electronic act means the transmission 
          of a communication, including but not limited to a message, 
          text, sound, or image by means of an electronic device.

          Existing law defines bullying to include acts of sexual 
          harassment, hate violence, or threats or intimidation 
          directed specifically toward a pupil or school personnel 
          that are sufficiently severe or pervasive as to have a 
          disruptive impact as specified.  

          This bill:

          1. Expands the definition of bullying committed by an 
             electronic act to include posting on a social network 
             Internet Web site.

          2. Adds bullying committed by 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.  

           Need for the Bill  .  In recent years the Legislature has 
          considered a number of bills that concern cyber bullying, 
          which is the use of electronic devices and information, 
          such as e-mail, instant messages, text messages, mobile 
          phones, and Internet sites to send or post harmful or 
          hurtful messages or images about an individual or group.  

          A publication from the U.S. Department of Justice, Office 
          of Juvenile Justice and Delinquency Programs (OJJDP), notes 
          that bullying can have short-term and long-term 
          psychological affects on both those who bully and those who 
          are bullied.  Long-term consequences have been linked to 



                                                                AB 746

          increases in criminal behavior and substance abuse.  
          Recently, a number of teen and youth suicides have been 
          traced to cyber bullying activities perpetrated by the use 
          of social networks to post harassing, malicious, and 
          intentionally harmful messages.  A 2001 report by the 
          National Institute of Child Health and Human Development 
          (NICHD) estimated that 1.6 million children in grades six 
          through 10 in the United States are bullied at least once a 
          week and 1.7 million bully others frequently.  

          A 2007 report from the National Association of Attorneys 
          General Task Force on 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.  The report stated "Bullying 
          was recognized as an important issue in examining school 
          violence.  The growth in the use of technology and social 
          networking sites by younger Americans has fueled a fear 
          among professionals that cyber bullying will become the 
          means most often utilized to harass, threaten, or otherwise 
          cause distress."  The Task Force recommended that states 
          "continue to implement and expand bullying prevention 
          measures, including cyber bullying."  

           Is existing law sufficient  ?  Current law already defines an 
          "electronic act" to mean the transmission of a 
          communication by means of an electronic device.  Given that 
          postings to social network sites must be done by means of 
          these devises, it could be argued that current law provides 
          school districts with sufficient authority to suspend or 
          expel a student who engages in bullying by means of posting 
          to social network sites such as MySpace or Facebook.    

           Case Law  .  Current law provides that a pupil may be 
          suspended from school or recommended for expulsion for 
          committing certain acts if they are related to school 
          activities or attendance that occur while the pupil is on 
          school grounds, while going to or coming from school, 
          during lunch periods (whether on or off campus), and 
          during, or while going to or coming from a school sponsored 
          activity.  Additionally, a pupil may be suspended or 
          expelled for intentionally engaging in harassment, threats, 
          or intimidation that is sufficiently severe or pervasive to 
          have the "actual and reasonably expected effect" of 



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          materially disrupting classwork, or in the case of sexual 
          harassment, to have a negative impact upon the individual's 
          academic performance or to create an intimidating, hostile, 
          or offensive educational environment.  

          An important question posed by this bill is whether cyber 
          bullying may be considered protected speech under the First 
          Amendment of the U.S. Constitution, and whether a school 
          district can discipline a student for conduct that may 
          occur outside of school hours.  In  Tinker v Des Moines 
          Independent Community School District  (393 U.S. 503, 506, 
          1969), the U.S. Supreme Court ruled that suspension or 
          expulsion for an activity that does not cause a substantial 
          disruption could be a violation of a student's freedom of 
          speech.  Thus, the "Tinker standard" permits schools to 
          regulate student speech that could cause a "material and 
          substantial disruption" in the operation of a school or 
          collide with the rights of others.  

          More recently, in the case of  J.C. v Beverly Hills Unified 
          School District  , the court ruled that a student's 
          suspension was not justified because a video posted on 
          YouTube, while insulting to the victim, did not result in a 
          substantial disruption of school activities.  However, a 
          recent California appeals court has ruled that cyber 
          bullying is not protected free speech if it constitutes a 
          hate crime, suggesting that school officials operate under 
          significant ambiguity in determining when they may regulate 
          cyber bullying.  While this bill will enable school 
          officials to consider hurtful social network postings as 
          bullying, it may not provide greater clarity about when 
          that conduct meets the substantial disruption standard.

           Related and Prior Legislation
          SB 453 (Correa), 2011-12 Session,  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.  (Held under 
          submission in Senate Appropriations Committee)  

          SB 755 (Lieu), 2011-12 Session, makes numerous changes to 



                                                                AB 746

          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.  (Held 
          under submission in Senate Appropriations Committee) 

          SB 919 (Lieu), 2011-12 Session, 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.  
          Passed the Senate with a vote of 38-0 on May 31, 2011.  (In 
          Assembly Education Committee)  

          AB 9 (Ammiano), 2011-12 Session, adds alternative 
          disciplinary action other than suspension or expulsion for 
          pupils found to have committed an act of bullying.  (In 
          Senate Education Committee)

          AB 227 (Hall), 2011-12 Session, 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.  (In Senate Education 

          AB 630 (Hueso), 2011-12 Session, encourages school 
          districts to reduce bullying by establishing training 
          programs that educates pupils by increasing their awareness 
          of bullying.  (In Assembly Education Committee)  

          AB 1156 (Eng), 2011-12 Session, 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.  
          (In Senate Rules Committee)

          AB 86 (Lieu), Chapter 646, Statutes of 2008, defines 
          bullying to mean acts 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 



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          and gave school officials grounds to suspend a pupil or 
          recommend a pupil for expulsion for bullying.  Passed the 
          Senate with a vote of 21-12 on August 11, 2008.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  6/9/11)

          California Police Chiefs Association
          California Probation Parole and Correctional Association
          California State PTA
          California Teachers Association
          Disability Rights California (support if amended)
          Regional Human Rights/Fair Housing Commission 
          San Francisco Unified School District
          School for Integrated Academics and Technologies
          United Cerebral Palsy

           ARGUMENTS IN SUPPORT  :    The author's office maintains that 
          while existing law authorizes the suspension or expulsion 
          of pupils who engage in bullying by means of an electronic 
          act, the law does not expressly include posting messages or 
          images on a social network site definition of how one may 
          communicate by an electronic act.  By expanding the 
          definition to include social network postings, the author's 
          office hopes this bill will provide greater guidance to 
          schools in determining whether harmful/hurtful social 
          network postings may be considered bullying.

           ASSEMBLY FLOOR  : 
          AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill 
            Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Charles Calderon, Campos, Carter, 
            Chesbro, Davis, Dickinson, Eng, Feuer, Fletcher, Fong, 
            Fuentes, Furutani, Gatto, Gordon, Hall, Hayashi, Roger 
            Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Lara, 
            Bonnie Lowenthal, Ma, Mitchell, Monning, Nestande, Pan, 
            Perea, V. Manuel Pérez, Portantino, Skinner, Smyth, 
            Solorio, Swanson, Torres, Wieckowski, Yamada, John A. 
          NOES: Donnelly, Hagman, Halderman, Miller, Norby
          NO VOTE RECORDED: Butler, Cedillo, Conway, Cook, Galgiani, 



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            Garrick, Gorell, Grove, Harkey, Jones, Knight, Logue, 
            Mansoor, Mendoza, Morrell, Nielsen, Olsen, Silva, 
            Valadao, Wagner, Williams, Vacancy

          CM:do  6/9/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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