BILL ANALYSIS Ó
AB 1729
Page 1
Date of Hearing: April 11, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 1729 (Ammiano) - As Introduced: February 16, 2012
SUBJECT : Pupil rights: suspension or expulsion
SUMMARY : Requires other means of correction to be used and
documented prior to the suspension or expulsion of any student
and revises the steps taken for suspensions and expulsions of
students with exceptional needs. Specifically, this bill:
1)Makes findings and declarations that the public policy of this
state is to ensure that school discipline policies support
safe, positive, supportive and equitable school environments,
that California school suspensions are disproportionately
imposed on pupils of color, pupils with disabilities, lesbian,
gay, bisexual and transgender pupils, and other vulnerable
pupil populations, and that nonpunitive classroom discipline
is more effective and efficient for addressing pupil
misconduct.
2)Authorizes the superintendent of a school district or
principal to use his or her discretion to provide alternatives
to suspension or expulsion that are age appropriate and
designed to address and correct the root causes of the pupil's
specific misbehavior.
3)Requires that an individual with exceptional needs who is
subject to discipline will have an individualized education
program (IEP) team meeting within three days in order to:
a) Discuss the behavior;
b) Determine if a fundamental behavioral assessment is
needed; and,
c) Determine if a behavioral intervention plan is needed.
4)Prohibits an individual with exceptional needs from being
subject to suspension, except when other means of correction
fail, expulsion, or other behavioral intervention. Instead,
requires that these individuals receive appropriate assessment
identifying behavioral need, proposed behavioral goals to
address identified needs, and appropriate related services.
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5)Requires suspension, including supervised suspension, be
imposed on individuals only after other means of correction
have been documented and have failed to bring about proper
conduct. Specifically, this bill expands the list of other
means of correction that may be used prior to suspension or
expulsion to include, but not be limited to, the following:
a) Positive behavior support approaches with tiered
interventions that occur on campus during the schoolday
through activities such as:
i) Conferences between school personnel, parents and
pupils;
ii) Referrals to the school counselor, psychologist,
social worker or other school support service personnel
for case management and counseling;
iii) Study teams, guidance teams, resource panel teams,
or other intervention-related teams that assess the root
causes of behavior;
iv) Referral for a comprehensive psychosocial or
psychoeducational assessment;
v) Prosocial behavior or anger management programs;
and,
vi) Restorative justice programs.
b) Community service programs such as outdoor
beautification; community or campus betterment; and
teacher, peer or youth assistance programs.
c) After school programs operated in collaboration with
local parent and community groups that are designed to
address specific behavioral issues or to expose pupils to
positive activities and behaviors.
EXISTING LAW :
1)Provides that a pupil may be suspended or expelled for
committing any of the following offenses:
a) Causing, attempting to cause, or threatening to cause
physical injury to another person; or willfully using force
or violence upon another person, except in self-defense;
b) Possessing, selling, or otherwise furnishing a firearm,
knife, explosive, or other dangerous object;
c) Unlawfully possessing, using, selling or otherwise
furnishing a controlled substance;
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d) Unlawfully offering, arranging or negotiating to sell a
controlled substance, alcoholic beverage, or an intoxicant
of any kind;
e) Committing or attempting to commit robbery or extortion;
f) Causing or attempting to cause damage to school property
or private property;
g) Stealing or attempting to steal school property or
private property;
h) Possessing or using tobacco, or products containing
tobacco or nicotine products;
i) Committing an obscene act or engaging in habitual
profanity or vulgarity;
j) Unlawfully possessing or unlawfully offering, arranging
or negotiating to sell drug paraphernalia;
aa) Disrupting school activities or otherwise willfully
defying the authority of supervisors, teachers,
administrators, school officials or other school personnel
engaged in the performance of their duties;
bb) Knowingly receive stolen school property or private
property;
cc) Possessing an imitation firearm;
dd) Committing or attempting to commit a sexual assault or
sexual battery;
ee) Harassing, threatening or intimidating a pupil who is a
complaining witness or a witness in a school disciplinary
proceeding in order to prevent the pupil from being a
witness or retaliating against that pupil for being a
witness, or both;
ff) Unlawfully offering, arranging to sell, or negotiating
to sell the prescription drug Soma;
gg) Engaging in or attempting to engage in hazing;
hh) Engaging in the act of bullying, including, but not
limited to, bullying committed by means of an electronic
act;
ii) Committing sexual harassment (grades 4 through 12 only);
jj) Causing or attempting to cause, threatening to cause, or
participating in an act of hate violence (grades 4 through
12 only);
aaa) Engaging in harassment, threats, or intimidation against
school district personnel or pupils that have the effect of
disrupting classwork, creating substantial disorder and
invading the rights of either school personnel or pupils by
creating an intimidating or hostile educational environment
(grades 4 through 12 only); and,
bbb) Making a terroristic threat against school officials or
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school property, or both. (Education Code (EC) Sections
48900, 48900.2, 48900.3, 48900.4, 48900.7)
2)Authorizes the superintendent of the school district or
principal to use his or her discretion to provide alternatives
to suspension or expulsion, including but not limited to,
counseling and an anger management program. (EC Section 48900)
3)Provides that suspension shall be imposed only when other
means of correction fail to bring about proper conduct; and,
provides that a pupil, including an individual with
exceptional needs, may be suspended upon first offense for
causing physical injury to another person; possessing a
firearm, knife or other dangerous object; possessing or using
a controlled substance; selling a controlled substance;
committing robbery or extortion; or if the pupil's presence
causes a danger to persons. (EC Section 48900.5)
4)Provides that a principal shall not suspend a pupil from
school for more than five consecutive days and the total
number of days for which a pupil may be suspended from school
shall not exceed 20 schooldays in any school year. (EC
Sections 48903 and 48911)
5)Authorizes an individual with exceptional needs to be
suspended or expelled from school only when in accordance with
federal law and regulations. (EC Section 48915.5)
6)Allows that as part of, or instead of, the disciplinary action
prescribed, the principal of a school may require a pupil to
perform community service on school grounds or, with written
permission from the parent or guardian of the pupil, off
school grounds, during the pupil's non-school hours. (EC
Section 48900.6)
7)Authorizes individuals with exceptional needs to be suspended,
under federal law, for up to a maximum of 10 school days.
Within 10 days of a change of placement for a student with
exceptional needs because of a violation of a code of student
conduct, members of the student's IEP team must meet to
determine if the conduct in question had any direct or
substantial relationship to the individual's disability. Prior
to any further change in the student's placement, a
manifestation determination meeting with that individual's IEP
team must be set to determine if a behavioral assessment and
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behavioral intervention plan are required. At any point when a
parent or guardian disagrees with the decisions of the IEP
team, an appeals process may be initiated. (U.S.C. Title 20,
Section 1415(k))
FISCAL EFFECT : Unknown
COMMENTS : This bill clarifies and broadens existing law by
requiring administrators to attempt and document the use of
other means of correction prior to suspending or expelling any
student. It broadens a section about acceptable alternatives to
suspension and expulsion by allowing administrators to determine
age appropriate activities that address the root cause of the
behavior. It also adds a provision about specific behavioral
procedures to take prior to the suspension or expulsion of
students with exceptional needs. The bill further defines some
examples of what may fall under the guidelines of other means of
correction. This list of other means of correction emphasizes
the importance of alternative methods such as positive behavior
support to suspension and expulsion as disciplinary measures.
Background. Research indicates that the suspension and
expulsion of individuals are rarely applied evenly. According to
the Civil Rights Project at the University of California, Los
Angeles, a study released in October of 2011 makes it clear that
in California, "unnecessarily harsh discipline policies are
applied unfairly and disproportionately to minority students."
The report also indicates that nationally, students with
disabilities were given longer suspensions and more frequent
expulsions. Additionally, in March 2012, the U.S. Department of
Education's Office for Civil Rights released a report indicating
that minority students have a much higher rate of suspension and
expulsion across the nation. These reports confirm the
declarations and findings presented in this bill about the
uneven application of these punitive disciplinary measures.
Numerous other reputable studies and reports verify and
highlight the effectiveness of positive behavior support
programs. According to the National Association of School
Psychologists (NASP), this approach is an "empirically
validated, function-based approach to eliminate challenging
behaviors and replace them with prosocial skills." NASP explains
that use of this approach "decreases the need for more intrusive
or aversive interventions (i.e., punishment or suspension) and
can lead to both systemic as well as individualized change."
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Since 2007, the Los Angeles Unified School District (LAUSD) has
also implemented a Foundational Discipline Policy of School-Wide
Positive Behavior Support that focuses on the benefits of
implementing positive behavior support programs on a school wide
basis. Evaluations indicate that some schools in LAUSD have
effectively implemented the positive behavior support programs.
In cases where positive behavior support programs have been
effectively implemented, they have led to improved school
climates and reductions in punitive disciplinary actions.
One example of outstanding results is Garfield High School in
Los Angeles. With a student population of approximately 5,000
students, it would seem likely that punitive disciplinary action
would be commonplace. Since the implementation of the school
wide positive behavior support program in 2009-2010, however,
Garfield High School has cut the number of suspensions and
expulsions dramatically while increasing student achievement. In
the 2010-2011 school year, Garfield suspended only one student.
At the time of this analysis in the 2011-2012 school year,
Garfield has suspended only one student. In addition,
administrators remark that there is noticeable improvement of
the school climate as a result of this program.
This bill seeks to address the concerns and findings about
punitive school discipline and to implement new statewide
policies to do so.
Documentation of other means of correction prior to suspension
or expulsion. This bill requires that schools document attempts
to use other means of correction prior to suspending or
expelling any individual student. By requiring this in statute,
principals and other disciplinary officers of a school would
first have to attempt alternative methods to improve student
behavior prior to using punitive disciplinary measures. This
requirement is left open ended in order to allow schools to have
flexibility in choosing the best alternative disciplinary
methods to use in order to address the specific concerns
surrounding a given individual's misbehavior.
Conceptually, this requirement is reasonable and makes sense. It
requires school districts to identify that efforts were made to
address the student misconduct in a positive way. Based on the
volume of research supporting the methodology behind positive
behavioral support, requiring schools to at least make the
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initial effort would be a step away from punitive and towards
alternative discipline.
Practically, however, there may be issues that arise with the
implementation of such a requirement. The bill does not specify
the level of documentation that would be required by a school.
The bill also does not specify how many alternative means of
corrective action would need to be documented prior to a student
being able to be suspended or expelled. It seems conceivable
that one school could interpret the statute to say that all
alternatives must be exhausted before moving on to suspension or
expulsion. Another school might read statute to say that after
trying one other means of correction without success, the
administrator may suspend or expel a student. The author may
wish to continue working to clarify what would be considered the
appropriate threshold of alternatives prior to moving to the
suspension or expulsion of an individual.
In addition to requiring the documentation of other means of
correction, this bill also provides a non-comprehensive list of
what can be seen as documentable "other means of correction" for
students. This bill clearly stipulates that a positive behavior
support approach with tiered interventions would be considered
acceptable. The tiered interventions include conferences between
school personnel, parents and pupils; referrals to school
support service personnel for case management and counseling;
and, intervention-related teams that assess the root causes of
behavior and develop plans to address the behavior in
partnership with the pupil. The bill also includes the referral
for a comprehensive psychosocial or psychoeducational assessment
for purposes of creating an IEP or plan pursuant to Section 504
of the federal Rehabilitation Act of 1973; enrollment in a
program for teaching prosocial behavior or anger management;
participation in a restorative justice program or community
service, and, any after-school programs operated in
collaboration with local parent and community groups that are
designed to address specific behavioral issues.
Current law allows for a principal of a school to require a
student to perform community service on school grounds during
the pupil's non-school hours, or with parent or guardian
permission, off school grounds during the pupil's non-school
hours. This bill would make it clear that these alternatives
would continue to be considered reasonable other means of
correction.
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Age appropriate alternatives to suspension that target the root
cause of misconduct. This bill also broadens a section of
existing law that currently lists alternatives to suspension and
expulsion as counseling and anger management programs. It
replaces the specific identification of counseling and anger
management programs with broader language that allows principals
to use alternatives that are age appropriate and designed to
address and correct the root causes of the pupil's specific
misbehavior. This more open approach significantly improves the
flexibility and responsiveness of current code to varying
situations. Across California, suspensions and expulsions are
given to students of different ages and for different reasons.
Making this section more flexible allows principals the
authority to assign alternative disciplinary measures that more
aptly target a student's specific needs and respond to the
incident at hand.
Students with exceptional needs: requiring the convening of the
IEP team within three days. This bill also specifically
addresses discipline for students with exceptional needs. The
intent of this bill is to ensure that students with exceptional
needs have greater protection from disciplinary action when it
may in fact be a manifestation of that student's exceptionality.
This bill would require state law to be stricter than federal
law governing these topics.
It requires California schools to hold an IEP meeting within
three days of an incident involving a student with exceptional
needs occurs. It would also require the IEP team to determine if
a fundamental behavioral assessment and behavioral intervention
plan are needed for the student. Federal law requires that the
IEP team meet for a manifestation determination hearing prior to
altering the placement of a student with exceptional needs, but
does not explicitly require a hearing after each disciplinary
incident.
In general, convening the IEP team to meet and discuss the
student's unique needs in light of the incident is a responsive
action that promotes the success of the individual with
exceptional needs. Ensuring that a fundamental behavioral
assessment is taken and that a behavioral intervention plan is
implemented if necessary will better enable schools to promote
success and provide accommodations for these students. All of
these changes imply a greater responsiveness to students with
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exceptional needs than is practiced under current law.
Suspending and expelling students with exceptional needs. This
bill also indicates a desire to provide students with
exceptional needs the appropriate services to address behavioral
issues instead of suspension and expulsion or other behavior
interventions. In its current form, this bill would prohibit the
expulsion of students with exceptional needs altogether. It also
prohibits students with exceptional needs from being subject to
suspension except when a student has acted in a way that
violates one of the following suspension offenses: causing
physical injury to another person; possessing a firearm, knife
or other dangerous object; possessing or using a controlled
substance; selling a controlled substance; committing robbery or
extortion; or if the pupil's presence causes a danger to
persons. As an alternative, students with exceptional needs
would be appropriately assessed to identify behavioral need,
would receive behavioral goals to address the identified needs
and would receive the appropriate related services. In addition,
the way the bill is currently drafted includes a provision
indicating that students with exceptional needs would also not
be subject to other behavioral intervention. This provision
seems to directly contradict the efforts of the surrounding
changes to code. Staff recommends eliminating the phrase "or
other behavioral intervention" from the bill to avoid confusion
and allow appropriate services to be provided. Making this
change will make it clear that services should be provided
instead of a suspension or expulsion.
It is also important to assess the implications of such a
sweeping provision about students with exceptional needs. There
are cases that illustrate that students with exceptional needs
can commit offenses warranting suspension or expulsion that are
in no way related to their specific exceptionality. This
provision would stop a school administrator from expelling a
student simply because they have exceptional needs, even if he
or she committed a major offense. This may lead to a situation
where a student who commits a major offense is still allowed to
remain on campus even if they pose a threat to another student.
This also could lead to students and families of students with
troubled backgrounds seeking to be classified as a student with
exceptional needs for the benefits provided under this
provision. Staff recommends restructuring this provision to say
that a student with exceptional needs may only be suspended or
expelled if the behavior is not related to a student's
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exceptional needs and is a mandatory suspension or expulsion
offense.
Broader goals and general policy. The provisions altering
requirements for working with students with exceptional needs
demonstrate the desire for a stronger statewide commitment to
these students with a sharper focus on their long term learning.
Requiring an IEP team meeting in response to behavioral
incidents would add a new layer of protection for these
students. As previously mentioned, however, there are
significant technical challenges with the part of the bill that
places limitations on the types of discipline that can be
administered to a student with exceptional needs. This component
of the bill requires revision and better clarity.
The provisions that apply for all students, however, place
greater emphasis on positive behavior support methods to
discipline than on the suspension and expulsion model that
currently dominates the education landscape in California. This
bill would require administrators to at least make an initial
effort to use an alternative method to improve student conduct
prior to suspension or expulsion. As noted in the findings and
declarations, current law in California generally supports the
use of alternative methods for the correction of student
misbehavior. This would be a significant new step towards
positive behavior support for students across the state by
clarifying the intent of the code and requiring administrators
to take substantial steps away from suspension and expulsion
practices. It also symbolizes an approach that holds a
longer-term viewpoint on the importance of instructing students
about acceptable behavior.
Arguments in support. The American Civil Liberties Union (ACLU)
of California writes that "AB 1729 would reaffirm that
superintendents and school principals have the discretion to
implement alternatives to suspension and expulsion and requires
documentation of use of any of these alternatives prior to
suspension or expulsion to address student misbehavior. The bill
is designed to correct the root causes of the pupil's
misbehavior, account for individualized education plans, and the
age of the student."
The California Academy of Child and Adolescent Psychiatry writes
that AB 1729 "expands the list of other means of correction that
must be implemented prior to suspension or expulsion to address
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most pupil misbehavior. For example a pupil with exceptional
needs with individualized education program (IEP) team will be
required to meet within three days to discuss and appropriately
address the behavior of the pupil with exceptional needs. AB
1729 is an important step in ensuring that appropriate and
effective actions are taken in correcting the root causes of the
pupil misbehavior."
Arguments in opposition. The Association of California School
Administrators (ACSA) writes, "AB 1729 prohibits a school
district from suspending, expelling or utilizing another
behavioral intervention for a student with exceptional needs
even in the event the act necessitating the suspension or
expulsion is completely unrelated to the student's IEP. For
example, if a student has a reading disability and gets into a
fight, a district would be prohibited from removing this student
only after another assessment identifying the behavioral needs,
goals and related services necessary. ACSA believes students
with exceptional needs should continue to be suspended or
expelled for incidents that jeopardize the safety of other
students, the school, or themselves."
Related legislation . This bill is one of several bills
introduced this year attempting to reduce the use of punitive
measures to respond to disciplinary and attendance problems.
They include:
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| Bill | Summary |
|------------------+----------------------------------------------|
|AB 1729 (Ammiano) |Requires other means of correction to be used |
| |and documented prior to the suspension or |
| |expulsion of any student, and revises the |
| |steps taken for suspensions and expulsions of |
| |students with exceptional needs. |
|------------------+----------------------------------------------|
|AB 2242 |Imposes in-school suspension and prohibits |
|(Dickinson) |off-campus suspension or extended suspension, |
| |or expulsion, due to disruption of school |
|*also on today's |activities or willful defiance of school |
|agenda. |officials. |
|------------------+----------------------------------------------|
|AB 2300 (Swanson) |Prohibits, at the request of a pupil or a |
| |pupil's parent or guardian, a school from |
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|*also on today's |disclosing a pupil's disciplinary records |
|agenda. |relating to suspensions to a postsecondary |
| |educational institution. |
|------------------+----------------------------------------------|
|AB 2537 (V. |Limits the acts committed by pupils that |
|Manuel Perez) |result in mandatory expulsion; authorizes, |
| |rather than requires, a school district to |
| |expel a student for committing specified |
| |acts; and authorizes, rather than requires, a |
|*also on today's |principal to notify appropriate law |
|agenda. |enforcement authorities of specified acts |
| |committed by pupils. |
|------------------+----------------------------------------------|
|AB 2616 (Carter) |Eliminates the requirement and instead |
| |authorizes a school to use its discretion to |
| |classify a pupil who misses three full days |
|*pending in the |in one school year or is tardy or absent for |
|Assembly |more than a 30-minute period during the |
|Education |schoolday without a valid excuse on three |
|Committee |occasions in one school year, or any |
| |combination thereof, as a truant. |
|------------------+----------------------------------------------|
|SB 1235 |Requires a school district to, if the number |
|(Steinberg) |of pupils suspended from school during the |
| |prior school year exceeded 25% of a school's |
| |enrollment or any numerically significant |
| |racial or ethnic subgroup, implement for a |
|*pending in the |minimum of three years, an evidence-based |
|Senate Education |system of schoolwide positive behavioral |
|Committee |interventions or strategies that are evidence |
| |based and designed to address school climate. |
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REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union of California (sponsor)
Asian Law Caucus
California Academy of Child and Adolescent Psychiatry
California Families to Abolish Solitary Confinement
Center on Juvenile & Criminal Justice
Children Now
Community Asset Development Re-defining Education
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Disability Rights California
Families to Amend California's Three Strikes
Fight Crime: Invest in Kids California
Legal Services for Children
Mexican American Legal Defense and Educational Fund
National Association of Social Workers
National Center for Lesbian Rights
Public Counsel
W. Haywood Burns Institute
Youth Justice Coalition
Youth Law Center
Opposition
Association of California School Administrators
Analysis Prepared by : Mark Murphy and Sophia Kwong Kim / ED.
/ (916) 319-2087