BILL NUMBER: AB 2536 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 31, 2016
AMENDED IN ASSEMBLY APRIL 26, 2016
AMENDED IN ASSEMBLY APRIL 13, 2016
INTRODUCED BY Assembly Member Chau
FEBRUARY 19, 2016
An act to amend Sections 234.2 and 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. safety: sexual bullying.
(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 acts, including, but not limited to,
engaging in acts of bullying by means of an electronic act.
This bill would include engaging in an act of sexting,
sexual bullying, as defined, as an act of
bullying by means of an electronic act 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.
(2) Existing law requires the State Department of Education to
display current information, and periodically update information, on
curricula and other resources that specifically address bias-related
discrimination, harassment, intimidation, and bullying based on
certain actual or perceived characteristics on the California Healthy
Kids Resource Center Internet Web site and other appropriate
department Internet Web sites where information about discrimination,
harassment, intimidation, and bullying is posted.
This bill would add sexual bullying to this list of topics the
department would be required to provide information on.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature finds and
declares all of the following:
(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.
(2) According to the American Academy of Pediatrics, 20 percent of
teenage boys and girls have sent a sext message.
(3) Sexting has serious legal and social consequences for pupils
who engage in it.
(4) Schools across the country have been suspending pupils for
sexting.
(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.
(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.
SECTION 1. Section 234.2 of the
Education Code is amended to read:
234.2. The department shall display current information, and
periodically update information, on curricula and other resources
that specifically address bias-related discrimination, harassment,
intimidation, sexual bullying, as defined in Section 48900,
and bullying based on any of the actual or perceived
characteristics set forth in Section 422.55 of the Penal Code and
Section 220 on the California Healthy Kids Resource Center Internet
Web site and other appropriate department Internet Web sites where
information about discrimination, harassment, intimidation,
sexual bullying, and bullying is posted.
SEC. 2. 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 (r), 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.
(iii) An act of sexting. sexual bullying.
(I) For purposes of this clause, "sexting"
"sexual bullying " 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.
(II) For purposes of this clause, "sexting"
"sexual bullying " 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.
(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.
(s) 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.
(t) 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).
(u) As used in this section, "school property" includes, but is
not limited to, electronic files and databases.
(v) 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.
(w) 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.
SEC. 3. 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 materials, and the
importance of safe and responsible use of technology in identifying
and reducing unhealthy sexual behaviors such as sexting.
(D) The possible connection between bullying and cyberbullying 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" has the same meaning
as defined in subclause (I) of clause (iii) of subparagraph (A) of
paragraph (2) of subdivision (r) of Section 48900.
SEC. 4. 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.