BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 746| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 746 Page 2 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. Comments 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 CONTINUED AB 746 Page 3 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 CONTINUED AB 746 Page 4 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 CONTINUED AB 746 Page 5 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 Committee) 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 CONTINUED AB 746 Page 6 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. Pérez NOES: Donnelly, Hagman, Halderman, Miller, Norby NO VOTE RECORDED: Butler, Cedillo, Conway, Cook, Galgiani, CONTINUED AB 746 Page 7 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 **** END **** CONTINUED