Amended in Assembly April 13, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2536

Introduced by Assembly Member Chau

February 19, 2016

An act to amend Sections 48900 and 51934 of the Education Code, relating to elementary and secondary education.

LEGISLATIVE COUNSEL’S DIGEST

AB 2536, as amended, Chau. Pupil discipline and instruction: sexting.

(1) Existing law prohibits the suspension of a pupil from school or the recommendation of a pupil for expulsion from school unless the school district superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed any of several specified begin delete acts. end delete begin insert acts end insert begin insert , including, but not limited to, engaging in acts of bullying by means of an electronic act. end insert

This bill would include engaging in an act of sexting, as defined, as an act begin insert of bullying by means of an electronic act end insert for which a pupil may be suspended or expelled from school.

(2) Existing law, the California Healthy Youth Act, requires school districts to ensure that all pupils in grades 7 to 12, inclusive, receive comprehensive sexual health education and HIV prevention education, as specified. Under the act, this instruction includes, among other things, information about sexual harassment, sexual assault, adolescent relationship abuse, intimate partner violence, and sex trafficking.

This bill would require this instruction to additionally include information about sexting, as defined, as specified. By imposing additional duties on school districts, this bill would impose a state-mandated local program.

(3) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert begin insert

(a) The Legislature finds and declares the
following:

end insert begin insert

(1) The issue of sexting, the sending of sexually explicit
photographs, videos, or messages via cell phone or instant
messenger, is an increasingly prevalent issue among teenagers.

end insert begin insert

(2) According to the American Academy of Pediatrics, 20
percent of teenage boys and girls have sent a sext message.

end insert begin insert

(3) Sexting has serious legal and social consequences for pupils
who engage in it.

end insert begin insert

(4) Schools across the country have been suspending pupils for
sexting.

end insert begin insert

(5) Section 48900.5 of the Education Code provides that
suspension shall be imposed only when other means of correction
fail to bring about proper conduct.

end insert begin insert

(b) It is the intent of the Legislature that a suspension or
expulsion for sexting under the amendments of this act to Section
48900 of the Education Code only occurs after school
administrators first use other means of correction outlined in
Section 48900.5 of the Education Code.

end insert

begin delete SECTION 1. end delete

begin insert SEC. 2. end insert   

Section 48900 of the Education Code is amended to
read:

48900.  

A pupil shall not be suspended from school or
recommended for expulsion, unless the superintendent of the school
district or the principal of the school in which the pupil is enrolled
determines that the pupil has committed an act as defined pursuant
to any of subdivisions (a) to begin delete (s), end delete begin insert (r), end insert inclusive:

(a) (1) Caused, attempted to cause, or threatened to cause
physical injury to another person.

(2) Willfully used force or violence upon the person of another,
except in self-defense.

(b) Possessed, sold, or otherwise furnished a firearm, knife,
explosive, or other dangerous object, unless, in the case of
possession of an object of this type, the pupil had obtained written
permission to possess the item from a certificated school employee,
which is concurred in by the principal or the designee of the
principal.

(c) Unlawfully possessed, used, sold, or otherwise furnished,
or been under the influence of, a controlled substance listed in
Chapter 2 (commencing with Section 11053) of Division 10 of the
Health and Safety Code, an alcoholic beverage, or an intoxicant
of any kind.

(d) Unlawfully offered, arranged, or negotiated to sell a
controlled substance listed in Chapter 2 (commencing with Section
11053) of Division 10 of the Health and Safety Code, an alcoholic
beverage, or an intoxicant of any kind, and either sold, delivered,
or otherwise furnished to a person another liquid, substance, or
material and represented the liquid, substance, or material as a
controlled substance, alcoholic beverage, or intoxicant.

(e) Committed or attempted to commit robbery or extortion.

(f) Caused or attempted to cause damage to school property or
private property.

(g) Stole or attempted to steal school property or private
property.

(h) Possessed or used tobacco, or products containing tobacco
or nicotine products, including, but not limited to, cigarettes, cigars,
miniature cigars, clove cigarettes, smokeless tobacco, snuff, chew
packets, and betel. However, this section does not prohibit the use
or possession by a pupil of his or her own prescription products.

(i) Committed an obscene act or engaged in habitual profanity
or vulgarity.

(j) Unlawfully possessed or unlawfully offered, arranged, or
negotiated to sell drug paraphernalia, as defined in Section 11014.5
of the Health and Safety Code.

(k) (1) Disrupted school activities or otherwise willfully defied
the valid authority of supervisors, teachers, administrators, school
officials, or other school personnel engaged in the performance of
their duties.

(2) Except as provided in Section 48910, a pupil enrolled in
kindergarten or any of grades 1 to 3, inclusive, shall not be
suspended for any of the acts enumerated in this subdivision, and
this subdivision shall not constitute grounds for a pupil enrolled
in kindergarten or any of grades 1 to 12, inclusive, to be
recommended for expulsion. This paragraph shall become
inoperative on July 1, 2018, unless a later enacted statute that
becomes operative before July 1, 2018, deletes or extends that
date.

(l) Knowingly received stolen school property or private
property.

(m) Possessed an imitation firearm. As used in this section,
“imitation firearm” means a replica of a firearm that is so
substantially similar in physical properties to an existing firearm
as to lead a reasonable person to conclude that the replica is a
firearm.

(n) Committed or attempted to commit a sexual assault as
defined in Section 261, 266c, 286, 288, 288a, or 289 of the Penal
Code or committed a sexual battery as defined in Section 243.4
of the Penal Code.

(o) Harassed, threatened, or intimidated a pupil who is a
complaining witness or a witness in a school disciplinary
proceeding for purposes of either preventing that pupil from being
a witness or retaliating against that pupil for being a witness, or
both.

(p) Unlawfully offered, arranged to sell, negotiated to sell, or
sold the prescription drug Soma.

(q) Engaged in, or attempted to engage in, hazing. For purposes
of this subdivision, “hazing” means a method of initiation or
preinitiation into a pupil organization or body, whether or not the
organization or body is officially recognized by an educational
institution, that is likely to cause serious bodily injury or personal
degradation or disgrace resulting in physical or mental harm to a
former, current, or prospective pupil. For purposes of this
subdivision, “hazing” does not include athletic events or
school-sanctioned events.

(r) Engaged in an act of bullying. For purposes of this
subdivision, the following terms have the following meanings:

(1)  “Bullying” means 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 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.

(2) (A) “Electronic act” means the creation or transmission
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, of a communication, including, but not limited to, any of
the following:

(i) A message, text, sound, or image.

(ii) 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 listed in paragraph (1).

(II) Creating a credible impersonation of another actual pupil
for the purpose of having one or more of the effects listed in
paragraph (1). “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 listed in paragraph (1). “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.

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(iii) An act of sexting.

end insert begin insert

(I) For purposes of this clause, “sexting” means the
dissemination of, or the solicitation or incitement to disseminate,
a photograph or other visual recording by a pupil to another pupil
or to school personnel by means of an electronic act with the
purpose or effect of humiliating or harassing a pupil. A photograph
or other visual recording, as described above, shall include the
depiction of a nude, semi-nude, or sexually explicit photograph
or other visual recording of a minor where the minor is identifiable
from the photograph, visual recording, or other electronic act.

end insert begin insert

(II) For purposes of this clause, “sexting” does not include a
depiction, portrayal, or image that has any serious literary, artistic,
educational, political, or scientific value or that involves athletic
events or school-sanctioned activities.

end insert

(B) Notwithstanding paragraph (1) and subparagraph (A), 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.

(3) “Reasonable pupil” means a pupil, including, but not limited
to, an exceptional needs pupil, who exercises average care, skill,
and judgment in conduct for a person of his or her age, or for a
person of his or her age with his or her exceptional needs.

begin delete

(s) (1) Engaged in an act of sexting.

(2) For purposes of this subdivision, “sexting” means the
dissemination of, or the solicitation or incitement to disseminate,
a photograph or other visual recording by a pupil to another pupil
or to school personnel by means of an electronic act with the
purpose or effect of humiliating or harassing a pupil. A photograph
or other visual recording, as described above, shall include the
depiction of any of the following:

(A) A minor’s exposed or visible genitals, pubic area, or rectal
area, or the nipple or areola of a minor female’s breast.

(B) A sexually explicit photograph or other visual recording of
a minor where the minor is identifiable from the photograph or
visual recording or the electronic act.

(3) For purposes of this subdivision, “sexting” does not include
a depiction, portrayal, or image that has any serious literary, artistic,
educational, political, or scientific value or that involves athletic
events or school-sanctioned activities.

(t)

end delete

begin insert (s) end insert  A pupil shall not be suspended or expelled for any of the
acts enumerated in this section 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 that are enumerated in this section
and related to a school activity or school attendance that occur at
any time, including, but not limited to, any of the following:

(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.

begin delete

(u)

end delete

begin insert (t) end insert  A pupil who aids or abets, as defined in Section 31 of the
Penal Code, the infliction or attempted infliction of physical injury
to another person may be subject to suspension, but not expulsion,
pursuant to this section, except that a pupil who has been adjudged
by a juvenile court to have committed, as an aider and abettor, a
crime of physical violence in which the victim suffered great bodily
injury or serious bodily injury shall be subject to discipline pursuant
to subdivision (a).

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(v)

end delete

begin insert (u) end insert  As used in this section, “school property” includes, but is
not limited to, electronic files and databases.

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(w)

end delete

begin insert (v) end insert  For a pupil subject to discipline under this section, a
superintendent of the school district or principal may use his or
her discretion to provide alternatives to suspension or expulsion
that are age appropriate and designed to address and correct the
pupil’s specific misbehavior as specified in Section 48900.5.

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(x)

end delete

begin insert (w) end insert  It is the intent of the Legislature that alternatives to
suspension or expulsion be imposed against a pupil who is truant,
tardy, or otherwise absent from school activities.

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 51934 of the Education Code is amended to
read:

51934.  

(a) Each school district shall ensure that all pupils in
grades 7 to 12, inclusive, receive comprehensive sexual health
education and HIV prevention education from instructors trained
in the appropriate courses. Each pupil shall receive this instruction
at least once in junior high or middle school and at least once in
high school. This instruction shall include all of the following:

(1) Information on the nature of HIV, as well as other sexually
transmitted infections, and their effects on the human body.

(2) Information on the manner in which HIV and other sexually
transmitted infections are and are not transmitted, including
information on the relative risk of infection according to specific
behaviors, including sexual activities and injection drug use.

(3) Information that abstinence from sexual activity and injection
drug use is the only certain way to prevent HIV and other sexually
transmitted infections and abstinence from sexual intercourse is
the only certain way to prevent unintended pregnancy. Instruction
shall provide information about the value of delaying sexual
activity while also providing medically accurate information on
other methods of preventing HIV and other sexually transmitted
infections and pregnancy.

(4) Information about the effectiveness and safety of all federal
Food and Drug Administration (FDA) approved methods that
prevent or reduce the risk of contracting HIV and other sexually
transmitted infections, including use of antiretroviral medication,
consistent with the federal Centers for Disease Control and
Prevention.

(5) Information about the effectiveness and safety of reducing
the risk of HIV transmission as a result of injection drug use by
decreasing needle use and needle sharing.

(6) Information about the treatment of HIV and other sexually
transmitted infections, including how antiretroviral therapy can
dramatically prolong the lives of many people living with HIV
and reduce the likelihood of transmitting HIV to others.

(7) Discussion about social views on HIV and AIDS, including
addressing unfounded stereotypes and myths regarding HIV and
AIDS and people living with HIV. This instruction shall emphasize
that successfully treated HIV-positive individuals have a normal
life expectancy, all people are at some risk of contracting HIV,
and the only way to know if one is HIV-positive is to get tested.

(8) Information about local resources, how to access local
resources, and pupils’ legal rights to access local resources for
sexual and reproductive health care such as testing and medical
care for HIV and other sexually transmitted infections and
pregnancy prevention and care, as well as local resources for
assistance with sexual assault and intimate partner violence.

(9) Information about the effectiveness and safety of all
FDA-approved contraceptive methods in preventing pregnancy,
including, but not limited to, emergency contraception. Instruction
on pregnancy shall include an objective discussion of all legally
available pregnancy outcomes, including, but not limited to, all of
the following:

(A) Parenting, adoption, and abortion.

(B) Information on the law on surrendering physical custody
of a minor child 72 hours of age or younger, pursuant to Section
1255.7 of the Health and Safety Code and Section 271.5 of the
Penal Code.

(C) The importance of prenatal care.

(10) Information about sexual harassment, sexual assault,
adolescent relationship abuse, intimate partner violence, and sex
trafficking.

(11) Information about sexting, including, but not limited to,
all of the following:

(A) The legal consequences and penalties for sharing sexually
suggestive or explicit materials, including, but not limited to,
applicable federal and state statutes.

(B) The nonlegal consequences of sharing sexually suggestive
or explicit materials, including, but not limited to, the effect on
relationships, loss of educational and employment opportunities,
and being barred or removed from school programs and
extracurricular activities.

(C) The potential, based upon the unique characteristics of
cyberspace and the Internet, of long-term and unforeseen
consequences for sharing sexually suggestive or explicit begin delete materials. end delete

begin insert materials, and the importance of safe and responsible use of
technology in identifying and reducing unhealthy sexual behaviors
such as sexting. end insert

(D) The possible connection between bullying and
begin delete cyber-bullying end delete begin insert cyberbullying end insert and pupils sharing sexually suggestive
or explicit materials.

(b) A school district may provide comprehensive sexual health
education and HIV prevention education consisting of
age-appropriate instruction earlier than grade 7 using instructors
trained in the appropriate courses. A school district that elects to
offer comprehensive sexual health education and HIV prevention
education earlier than grade 7 may provide age appropriate and
medically accurate information on any of the general topics
contained in paragraphs (1) to (11), inclusive, of subdivision (a).

(c) For purposes of this section, “sexting” means sending or
receiving sexually explicit messages, images, or videos by means
of an electronic communication.

begin delete SEC. 3. end delete

begin insert SEC. 4. end insert   

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.