BILL ANALYSIS Ó
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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.
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
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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
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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
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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.
Pérez
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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