BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-2014 Regular Session
BILL NO: AB 256
AUTHOR: Garcia
AMENDED: May 14, 2013
FISCAL COMM: No HEARING DATE: June 26, 2013
URGENCY: No CONSULTANT:Lynn Lorber
SUBJECT : Suspension or recommendation for expulsion:
cyber-bullying.
SUMMARY
This bill specifically authorizes schools to suspend or
recommend for expulsion a pupil for bullying by electronic
means that originated off of school grounds.
BACKGROUND
Current law prohibits a pupil from being suspended or
recommended for expulsion unless the principal of the
school determines that the pupil has committed certain
acts, and gives schools the discretion to take action for
most offenses. (Education Code § 48900)
Pupils may be suspended for a first offense if the school
principal determines that the pupil committed certain acts
or that pupil's presence causes a danger to persons or
property or threatens to disrupt the instructional process
or the pupil committed certain acts. (EC § 48900.5)
Bullying
Relative to bullying, current law authorizes schools to
suspend or recommend for expulsion a pupil who engages in
an act of bullying, which is defined as any severe or
pervasive physical or verbal act or conduct, including
communications made in writing or by means of an electronic
act, directed toward one or more pupils that has or can be
reasonably predicted to have the effect of one or more of
the following:
1) Placing a reasonable pupil or pupils in fear of harm
AB 256
Page 2
to that pupil's or those pupils' person or property.
2) Causing a reasonable pupil to experience a
substantially detrimental effect on his or her
physical or mental health.
3) Causing a reasonable pupil to experience substantial
interference with his or her academic performance.
4) 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(r)(1))
Current law defines "electronic act" as 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, sounds, or image.
2) A post on a social network website including, but not
limited to:
a) Posting to or creating a burn page, as
defined, created for the purpose of having one or
more of the effects listed above.
b) Creating a credible impersonation of another
actual pupil, as defined, for the purpose of
having one or more of the effects listed above.
c) Creating a false profile, as defined, for
the purpose of having one or more of the effects
listed above. (EC § 48900(r)(2))
Current law prohibits a pupil from being suspended or
expelled unless the act is related to a school activity or
school attendance. Schools are specifically authorized to
suspend or expel a pupil for acts that are related to a
school activity or school attendance that occur at any
AB 256
Page 3
time, including but not limited to:
1) While on school grounds.
2) While going to or coming from school.
3) During the lunch period whether on or off the campus.
4) During, or while going to or coming from, a
school-sponsored activity.
(EC § 48900(s))
Subjective decision to expel
Schools may expel pupils for various offenses, including
bullying, upon finding either of the following:
1) Other means of correction are not feasible or have
repeatedly failed to bring about proper conduct.
2) Due to the nature of the violation, the presence of
the pupil causes a continuing danger to the physical
safety of the pupil or others.
(EC § 48915(e))
Prior to suspension
Current law states that suspension shall be imposed only
when other means of correction fail to bring about proper
conduct. (EC § 48900.5)
Suspension by the principal must be preceded by an informal
conference between the principal, pupil and whenever
practicable, the teacher, supervisor or school employee who
referred the pupil to the principal. School principals may
suspend a pupil without first holding an informal
conference with the pupil if an emergency situation exists.
A school employee is required to make a reasonable effort
to contact the pupil's parents at the time of suspension;
however, whenever a pupil is suspended from school (as
opposed to suspension from a class) the parent must be
notified in writing. (EC § 48911)
Decision to suspend
AB 256
Page 4
The governing board of a school district is required,
unless a request has been made to the contrary, to hold
closed sessions if the board is considering suspending or
taking other disciplinary action (other than expulsion) if
a public hearing would lead to the release of confidential
information. School districts are required to notify, in
writing, the pupil and the pupil's parent of the intent to
call and hold a closed session. (EC § 48912)
Alternatives to out-of-school suspension
School district superintendents and school principals are
authorized to use discretion to provide alternatives to
suspension or expulsion, including counseling and an anger
management program. (EC § 48900(v))
School principals are authorized to assign a suspended
pupil to a supervised suspension classroom for the entire
period of suspension if the pupil poses no imminent danger
or threat to the campus, pupils, or staff, or if an action
to expel the pupil has not been initiated. (EC § 48911.1)
Current law states that schools should consider
implementing at least one of the following if the number of
pupils suspended during the prior school year exceeded 30%
of the school's enrollment:
1) A supervised suspension program.
2) A progressive discipline approach during the schoolday
on campus (as an alternative to off-campus
suspension), using any of the following activities:
a) Conferences between the school staff,
parents and pupils.
b) Referral to the school counselor,
psychologist, child welfare attendance personnel,
or other school support service staff.
c) Detention.
d) Study teams, guidance teams, resource panel
AB 256
Page 5
teams, or other assessment-related teams. (EC §
48911.2)
Teachers may suspend pupils from class for the day and the
following day. If the pupil is to remain on campus during
that suspension, the pupil must be under appropriate
supervision. Teachers must ask the parent to attend a
parent-teacher conference regarding the suspension. Pupils
are prohibited from returning to the class from which he or
she was suspended, during the period of the suspension,
without the concurrence of the teacher and principal.
(EC § 48910)
Schools are authorized to require a pupil to perform
community service as part of or instead of suspension or
expulsion for most offenses. (EC § 48900.6)
Missed assignments
The teacher of any class from which a pupil is suspended is
authorized to require the pupil to complete any assignments
and tests missed during the suspension. (EC § 48913)
Number of days of suspension
The number of days that a pupil may be suspended from
school is capped at five consecutive schooldays. (EC §
48911)
With some exception, the total number of days for which a
pupil may be suspended is capped at 20 schooldays per
school year, unless the pupil enrolls in or is transferred
to another regular school, an opportunity school or a
continuation school, in which case the cap is 30 schooldays
per school year. School districts are authorized to count
suspensions that occur while a pupil is enrolled in another
school district toward the maximum numbers of days for
which a pupil may be suspended in any school year. (EC §
48903)
In cases where expulsion from any school or suspension for
the remainder of the semester from continuation schools is
being processed by a school district, the district
superintendent may extend the suspension until the
AB 256
Page 6
governing board has rendered a decision. (EC § 48911(g))
Length of expulsion .
School district governing boards are required to set a
date, not later than the last day of the semester following
the semester in which the expulsion occurred, when the
pupil shall be reviewed for readmission to a school within
the district or the school the pupil last attended. (EC §
48916(a))
Pupils with exceptional needs
Schools are authorized to suspend or expel an individual
with exceptional needs in accordance with federal law. If
a pupil with an individualized education program (IEP)
exhibits behavior problems, the IEP team must make a
determination if the behavior is a manifestation of the
disability and whether the strategies in the IEP are
effective to address the behavior. If it is determined
that the IEP is ineffective, a functional analysis is then
amended to include a behavior intervention plan. (EC §
48915.5, § 56523, and California Code of Regulations Title
5, § 3052)
ANALYSIS
This bill modifies the definition of "electronic act,"
related to an act of bullying, to specify that the creation
and transmission of the electronic act originated on or off
the schoolsite.
STAFF COMMENTS
1) Need for the bill . According to the author, "While it
is arguable that existing law in California 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. This bill would simply clarify
that students may be suspended or expelled for acts of
cyber-bullying that are not limited by where the acts
originate."
AB 256
Page 7
2) Already authorized to suspend or recommend for
expulsion ? Current law authorizes schools to suspend,
or recommend for expulsion, a pupil who has been found
to have engaged in an act of bullying, as defined,
that has or can be reasonably predicted to have 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(r)(1))
Further, current law prohibits a pupil from being
suspended or expelled unless the act is related to a
school activity or school attendance. Schools are
specifically authorized to suspend or expel a pupil
for acts that are related to a school activity or
school attendance that occur at any time. (EC
48900(s))
While this bill specifically authorizes schools to
suspend or recommend for expulsion a pupil who engages
in an act of bullying by electronic means that was
created and transmitted off of school grounds, the
school would first need to determine that the victim
is affected pursuant to a-d above. Therefore, a pupil
cannot be suspended or recommended for expulsion
unless the act disrupts a school activity or
attendance.
AB 256
Page 8
3) Case law . According to the Assembly Education
Committee analysis, 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 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 website as causing a substantial
disruption to school activity.
AB 256
Page 9
4) Alternatives to out-of-school suspension . Current law
provides that suspension may be imposed only when
other means of correction fail to bring about proper
conduct. Current law requires suspension by the
principal to be preceded by an informal conference
between the principal, pupil and whenever practicable,
the teacher, supervisor or school employee who
referred the pupil to the principal (unless an
emergency situation exists). Current law authorizes
schools to consider various forms of other corrective
action, such as in-school suspension.
5) Related legislation . AB 420 (Dickinson) prohibits
schools from suspending a pupil in grade K-5 for
substantially preventing instruction (currently known
as "willful defiance"), prohibits schools from
expelling pupils for this act, and limits the
authority of schools to suspend a pupil for this act
to pupils in grades 6-12 and only upon the third
offense. AB 420 is scheduled to be heard by this
Committee on June 26.
AB 1216 (Campos) provides that a pupil who engages in
bullying is subject to either of the following, at the
option of the pupil's parent or legal guardian:
a) Suspension or expulsion, or an alternative
to expulsion provided by the superintendent of
the school district or the principal.
b) Attendance at a class designed to prevent
and eradicate bullying, conducted by the school
district in which the pupil is enrolled.
AB 1216 is pending in the Assembly Education
Committee.
6) Prior legislation . AB 2242 (Dickinson, 2012) would
have prohibited pupils who are found to have disrupted
school activities or otherwise willfully defied the
authority of school officials from being subject to
extended suspension, or recommended for expulsion. AB
2242 was vetoed by the Governor, whose veto message
AB 256
Page 10
read:
I cannot support limiting the authority of local
school leaders, especially at a time when budget
cuts have greatly increased class sizes and
reduced the number of school personnel. It is
important that teachers and school officials
retain broad discretion to manage and set the
tone in the classroom.
The principle of subsidiarity calls for greater,
not less, deference to our elected school boards
which are directly accountable to the citizenry.
SB 1235 (Steinberg, 2012) would have encouraged
schools that have suspended more than 25% of the
school's enrollment or more than 25% of any
numerically significant racial or ethnic subgroup of
the school's enrollment in the prior school year to
implement, for at least three years, at least one
specified strategies to reduce the suspension rate or
disproportionality. SB 1235 was vetoed by the
Governor, whose veto message read:
This bill requires the Superintendent of Public
Instruction each year to compile a list of
schools which suspend too high a percentage of
their students and then invite districts that
have such schools to attend meetings to discuss
the problem.
My preference is to leave the matter of student
suspension to local school boards and the
citizens who elect them.
I understand the author's concern, which is why I
have signed a number of other bills aimed at
reducing the number of student suspensions and
expulsions.
SUPPORT
California Federation of Teachers
AB 256
Page 11
OPPOSITION
Disability Rights California