BILL ANALYSIS Ó
AB 256
Page 1
Date of Hearing: May 8, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 256 (Garcia) - As Amended: April 8, 2013
SUBJECT : Pupils: grounds for suspension and expulsion
SUMMARY : Specifies that conduct that constitutes bullying by
means of an electronic act may be found to be "related to a
school activity or school attendance" even if the conduct
originated from an off-campus location. Adds "bullying by means
of an electronic act" to the provision authorizing a
superintendent or principal to suspend or recommend expulsion of
a pupil enrolled in any of grades 4 to 12, inclusive, if the
superintendent or the principal of the school determines that
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.
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;
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
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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
school property, or both. (Education Code (EC) Sections
48900, 48900.2, 48900.3, 48900.4, 48900.7)
2)Defines "bullying" to mean any severe or pervasive physical or
verbal act or conduct, including communications made in
writing or by means of an electronic act, and including one or
more acts committed by a pupil or group of pupils as defined
in Section 48900.2, 48900.3, or 48900.4, directed toward one
or more pupils that has or can be reasonably predicted to have
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the effect of one or more of the following:
a) Placing a reasonable pupil or pupils in fear of harm to
that pupil's or those pupils' person or property.
b) Causing a reasonable pupil to experience a substantially
detrimental effect on his or her physical or mental health.
c) Causing a reasonable pupil to experience substantial
interference with his or her academic performance.
d) Causing a reasonable pupil to experience substantial
interference with his or her ability to participate in or
benefit from the services, activities, or privileges
provided by a school. (EC 48900)
3)Defines "electronic act" to mean the transmission, by means of
an electronic device, including, but not limited to, a
telephone, wireless telephone, or other wireless communication
device, computer, or pager, of a communication, including, but
not limited to, any of the following:
a) A message, text, sound, or image.
b) A post on a social network Internet Web site including,
but not limited to:
i) Posting to or creating a burn page. "Burn page"
means an Internet Web site created for the purpose of
having one or more of the effects specified under the
definition of bullying.
ii) Creating a credible impersonation of another actual
pupil for the purpose of having one or more of the
effects specified under the definition of bullying.
"Credible impersonation" means to knowingly and without
consent impersonate a pupil for the purpose of bullying
the pupil and such that another pupil would reasonably
believe, or has reasonably believed, that the pupil was
or is the pupil who was impersonated.
iii) Creating a false profile for the purpose of having
one or more of the effects specified under the definition
of bullying. "False profile" means a profile of a
fictitious pupil or a profile using the likeness or
attributes of an actual pupil other than the pupil who
created the false profile. (EC 48900)
4)Specifies that an electronic act shall not constitute
pervasive conduct solely on the basis that it has been
transmitted on the Internet or is currently posted on the
Internet. (EC 48900)
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5)Specifies that a pupil shall not be suspended or expelled
unless the act is related to a school activity or school
attendance occurring within a school under the jurisdiction of
the superintendent of the school district or principal or
occurring within any other school district. A pupil may be
suspended or expelled for acts related to a school activity or
school attendance that occur at any time, including, but not
limited, to any of the following:
a) While on school grounds.
b) While going to or coming from school.
c) During the lunch period whether on or off the campus.
d) During, or while going to or coming from, a
school-sponsored activity. (EC 48900)
FISCAL EFFECT : This bill is keyed non-fiscal by the Legislative
Counsel.
COMMENTS : Under existing law, a principal or a superintendent
may suspend or recommend expulsion of a pupil for committing any
of a number of specified acts, including bullying and bullying
via an electronic act (cyberbullying). A 2007 report by the
National Association of Attorneys General Task Force on School
and Campus Safety warns, "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. And while certainly more prevalent in the elementary
and secondary school setting, issues related to bullying or
intimidation are increasingly relevant in other nontraditional
settings. The Task Force recognizes that educators, parents,
law enforcement and other stakeholders in school safety should
remain vigilant in addressing bullying, including cyber
bullying."
AB 1156 (Eng), Chapter 732, Statutes of 2011, changed the
definition of "bullying" to mean any severe or pervasive
physical or verbal act or conduct, including communications made
in writing or by means of an electronic act, and including one
or more acts committed by a pupil or group of pupils engaging in
sexual harassment, hate violence, harassment, threats, or
intimidation, directed toward one or more pupils that has or can
be reasonably predicted to cause fear and have an impact on a
student's physical and mental health, academic performance, or a
student's ability to participate in school and school
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activities.
Existing law defines an "electronic act" to mean the
transmission, by means of an electronic device, including, but
not limited to, a telephone, wireless telephone, or other
wireless communication device, computer, or pager, of a
communication, including, but not limited to, any of the
following:
e) A message, text, sound, or image.
f) A post on a social network Internet Web site including,
but not limited to:
i) Posting to or creating a burn page.
ii) Creating a credible impersonation of another actual
pupil. "Credible impersonation" means to knowingly and
without consent impersonate a pupil for the purpose of
bullying the pupil and such that another pupil would
reasonably believe, or has reasonably believed, that the
pupil was or is the pupil who was impersonated.
iii) Creating a false profile. "False profile" means a
profile of a fictitious pupil or a profile using the
likeness or attributes of an actual pupil other than the
pupil who created the false profile.
Existing law prohibits the suspension or expulsion of a pupil
unless the act was committed on school grounds, while going to
or coming from school, during a lunch period whether on or off
campus, and going to and coming from a school-sponsored
activity. This bill specifies that conduct that constitutes
bullying by means of an electronic act (cyberbullying) may be
found to be "related to a school activity or school attendance"
even if the conduct originated from an off-campus location.
The author states, "While it is arguable that existing law in CA
already allows school discipline for cyber-bullying originating
from off campus (so long as it is school-related), the Education
Code could be clearer to ensure this policy."
Expanding responsibilities of school administrators ? The
Association of California School Administrators (ACSA), writing
in opposition to the bill, states, "ACSA is very concerned that
that this expansion will create significant liability for
administrators and school districts. Principals and
superintendents will get mired in the responsibility of
monitoring social media and then make a determination whether
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the exchange warrants bullying or not."
According to the author, it is not the intent of this bill to
add new responsibilities by requiring superintendents and
principals to monitor students' off-campus activities, or to
increase suspensions and expulsions. Current law already allows
administrators to suspend or expel a student for bullying via an
electronic act if the act places a pupil in fear of harm to that
pupil's person or property; causes a pupil to experience a
substantially detrimental effect on his or her physical or
mental health; causes a pupil to experience substantial
interference with his or her academic performance; or causes a
pupil to experience substantial interference with his or her
ability to participate in or benefit from the services,
activities, or privileges provided by a school. The purpose of
this bill is simply to clarify that when an administrator
suspends or recommends expulsion of a student for bullying via
an electronic act, the electronic act (the text or social
network Internet Web site post, etc.) may not need to have been
generated while at school, while coming to and from school, or
during a school-sponsored activity.
Freedom of speech or school safety ? The American Civil
Liberties Union, also in opposition of the bill, states, "In no
other instances does state law authorize schools to punish
students for their off-campus activity. AB 256 singles out
speech for differential treatment. Under this bill, speech -
and only speech - can be punished even when it originates
off-campus. The bill's approach turns our constitutional
protections for speech on their head. Under the state and
federal constitutions, speech receives more, not less protection
from governmental intrusion."
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).
In the 2010 case of J.C. v Beverly Hills Unified School
District, a student posted a video of her friends off campus
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insulting a fellow classmate. The student who was the target of
the video went to a counselor in tears, not wanting to attend
class. Consequently, 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 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, 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.
Committee amendments . Because the proposed language in this
bill may be construed to require administrators to monitor
student activities away from the schoolsite, staff recommends
another approach to achieve the intent of the bill. Staff
recommends striking the proposed language specifying that
conduct that constitutes bullying by means of an electronic act
may be found to be "related to a school activity of school
attendance" even if the conduct originated from an off-campus
location, on page 6, lines 4 through 7, and instead clarifying
the definition of "electronic act" to include transmission that
may be originated on or off campus.
This bill also adds "bullying by means of an electronic act" to
the provision authorizing a pupil in grades 4th through 12th to
be suspended or recommended for expulsion if the superintendent
or principal determines that pupil has intentionally engaged in
harassment, threats, or intimidation that is sufficiently severe
or pervasive to have the actual and reasonably expected effect
of materially disrupting classwork, creating substantial
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disorder, and invading the rights of either school personnel or
pupils by creating an intimidating or hostile educational
environment. Adding "bullying" in this provision when it
already exists in another provision is confusing. Each provision
addresses a different act that can lead to suspension or
expulsion. It is unnecessary to add "bullying by means of an
electronic act" to this provision. Staff recommends striking
this provision.
Arguments in Support . The Fresno Unified School District
states, "While Fresno Unified School District is embarking on a
new program of restorative justice in our schools, anti-bullying
efforts already under way involve some aspects of restorative
justice. AB 256 will not automatically lead to more suspensions
and expulsions; however, the bill acknowledges that
cyberbullying is a concern for parents and students and intends
to keep pupils learning in a safe environment."
Arguments in Opposition . Public Counsel states, "Research has
made it clear that punitive disciplinary approaches do not work:
they are ineffective at reducing student misbehavior, do not
make schools safer, and fail to improve academic achievement.
We believe that legislation should focus on proven positive
alternatives that address the root causes of behavior."
Previous related legislation . AB 1732 (Campos), Chapter 157,
Statutes of 2012, specifies that bullying via an electronic act
using a post on a social network Internet Web site includes a
posting to or creating a burn page, creating a credible
impersonation of another actual person, and creating a false
profile.
AB 746 (Campos), Chapter 72, Statutes of 2011, expands the
definition of bullying by means of an electronic act to include
a post on a social network Internet Web site.
AB 1156 (Eng), Chapter 732, Statutes of 2011, authorizes
training in the prevention of bullying, gives priority for
interdistrict transfers to victims of bullying, and revises the
definition of bullying.
REGISTERED SUPPORT / OPPOSITION :
Support
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California Federation of Teachers
Fresno Unified School District
Opposition
American Civil Liberties Union
Association of California School Administrators
Disability Rights California
Public Counsel
Analysis Prepared by : Sophia Kwong Kim / ED. / (916) 319-2087