BILL ANALYSIS Ó
AB 256
Page 1
ASSEMBLY THIRD READING
AB 256 (Garcia)
As Amended May 14, 2013
Majority vote
EDUCATION 7-0
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|Ayes:|Buchanan, Olsen, Campos, | | |
| |Chávez, Nazarian, Weber, | | |
| |Williams | | |
| | | | |
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SUMMARY : Specifies, for the purposes of pupil suspensions and
expulsions, that bullying via an "electronic act" means the
creation and the transmission of a communication by means of an
electronic device, as specified, that was originated on or off
the schoolsite.
FISCAL EFFECT : None. 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 warned, "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
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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
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:
1)A message, text, sound, or image.
2)A post on a social network Internet Web site including, but
not limited to:
a) Posting to or creating a burn page.
b) 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.
c) 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.
This bill clarifies that an "electronic act" means the creation,
in addition to the transmission, of a communication that was
originated on or off the schoolsite by means of an electronic
device, as specified.
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."
Existing law prohibits the suspension or expulsion of a pupil
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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.
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.
This bill is not inconsistent with how school administrators or
the courts have interpreted state law. Students will not be
suspended or expelled solely because of activities conducted
away from the schoolsite; there must be some type of impact on
students, as specified under the definition of bullying. 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 can then 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
insulting a fellow classmate. The student who was the target of
the video went to a counselor in tears, not wanting to attend
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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 or 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.
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."
The American Civil Liberties Union, writing in opposition to the
prior version 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."
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Analysis Prepared by : Sophia Kwong Kim / ED. / (916) 319-2087
FN: 0000583