BILL ANALYSIS Ó AB 881 Page 1 Date of Hearing: April 8, 2015 ASSEMBLY COMMITTEE ON EDUCATION Patrick O'Donnell, Chair AB 881 (Cristina Garcia) - As Introduced February 26, 2015 SUBJECT: Pupils: grounds for suspension and expulsion: bullying SUMMARY: Revises, for the purposes of pupil suspension and expulsion, the definition of bullying via an electronic act from the "creation and transmission" of a communication to the "creation or transmission" of a communication, via an electronic device, originated on or off the schoolsite. EXISTING LAW: 1)Provides that a pupil may be suspended or expelled for committing any of a number of specified acts. (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 EC Sections 48900.2, 48900.3, or 48900.4, directed toward one or more pupils that has or can be reasonably predicted to have the effect of one or more of the following: AB 881 Page 2 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 creation and transmission of a communication, originated on or off the schoolsite, by means of an electronic device, including, but not limited to, a telephone, wireless telephone, or other wireless communication device, computer, or pager, 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) AB 881 Page 3 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) 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). "Bullying" 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, 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 activities. AB 256 (Garcia), Chapter 700, Statutes of 2013, amended the definition of an "electronic act" to mean the creation and transmission of a communication, by means of an electronic device, that may be originated on or off the schoosite. Prior to AB 256, the definition of an "electronic act" only referenced the transmission of a communication via an electronic device, and was silent on whether the act must be generated and/or transmitted on or off the schoolsite. While the courts have ruled that cyberbullying is contingent on whether an action causes a substantial disruption to school activities or work of a school, regardless of where the action took place, AB 256 made it clear in the law that where the communication was created and transmitted does not matter. Concerns have been raised that AB 256 may have inadvertently narrowed the definition of bullying AB 881 Page 4 via an electronic act, by defining "electronic act" as the creation and transmission of a communication, which limits a principal or superintendent's ability to suspend or expel a pupil to only those incidences where a pupil created and transmitted a communication via an electronic device, and prevents a principal or superintendent from suspending or recommending expulsion if a pupil did not create the communication but took part in transmitting it to others. This bill changes "creation and transmission" to "creation or transmission." This bill will not result in automatic suspension or expulsion. Principals and superintendents continue to have the discretion to determine whether the act causes a substantial disruption to school activities or work of a school. Arguments in support. The Association of Regional Center Agencies supports the bill and states, "Cyber-bullying has made it possible for individuals whose torment might be somewhat more limited and public be pervasive, constant, and (literally) global. Current law describes, for the purposes of bullying, text messages and social media posts, among other new methods of communication. But it erroneously limits the definition to mean both the act of creation and transmission. This eliminates every act of forwarding, copying, or sharing onwards any act of bullying. This bill solves this oversight with a very concise stroke of the pen, ensuring a closer adherence to the intent of the law." Arguments in opposition. Public Counsel opposes the bill and argues that suspension of pupils is ineffective in preventing or stopping bullying. "Instead of reducing the likelihood of behavioral incidents, school suspension in general appears to predict higher future rates of misbehavior and suspension among those students who are suspended," states the organization. AB 881 Page 5 Previous legislation. AB 1450 (Garcia) introduced last year, is identical to this bill. The bill passed this Committee, the Assembly, and the Senate Education Committee with no "no" votes. The author later struck the contents of the bill and used the vehicle for another subject. Previous related legislation. AB 256 (Garcia), Chapter 700, Statutes of 2013, specifies, for the purposes of pupil suspensions and expulsions, that bullying via an "electronic act" means the creation and transmission of a communication by means of an electronic device, as specified, that was originated on or off the schoolsite. 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: AB 881 Page 6 Support Association of California Regional Center Agencies California Association for Health, Physical Education, Recreation and Dance California Federation of Teachers State Public Affairs Committee of the Junior Leagues of California Opposition ACLU GSA Network of California Legal Services for Children Public Counsel Analysis Prepared by:Sophia Kwong Kim / ED. / (916) 319-2087 AB 881 Page 7