BILL NUMBER: AB 349 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Mountjoy
FEBRUARY 10, 2005
An act to add Article 7 (commencing with Section 51560) to Chapter
4 of Part 28 of the Education Code, relating to instruction.
LEGISLATIVE COUNSEL'S DIGEST
AB 349, as introduced, Mountjoy. Prohibited instruction: sexual
instruction or counseling.
Existing law permits the parent or guardian of a pupil to excuse
his or her child from all or part of comprehensive sexual health
education, HIV/AIDS prevention education, and assessments related to
that education, as specified.
This bill would prohibit certain sexual instruction or counseling
of pupils in kindergarten and grades 1 to 6, inclusive, and would
require a school district to provide notice and obtain the written
approval of the parent or guardian of a pupil to provide this
instruction or counseling to a pupil in grades 7 to 12, inclusive, as
specified. Because this bill would impose additional requirements
on school districts, this bill would create a state-mandated local
program.
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:
SECTION 1. Article 7 (commencing with Section 51560) is added to
Chapter 4 of Part 28 of the Education Code , to read:
Article 7. Approval of Sexual Instruction or Counseling
51560. As used in this article: (a) "Parent" means the biological
parent of a pupil, or the legally adoptive parent of a pupil.
(b) "Guardian" means the legal guardian of a pupil.
(c) "Instruction" means an assignment, demonstration, depiction,
discussion, dissemination, display, explanation, posting, question,
survey, or test.
(d) "Notice" or "notify" means a written advisory that complies
with the requirements of Section 51563, that instruction or
counseling will be provided on one or more of the subjects specified
in Section 51561.
(e) "Public school setting" includes any school sponsored activity
involving an employee, contractor, volunteer, or agent of a school
district, regardless of its location.
51561. If a school district intends to provide instruction or
counseling in a public school setting to, or in the presence of, a
pupil in grades 7 to 12, inclusive, relating to bestiality,
bisexuality, cunnilingus, domestic partnerships, fellatio,
homosexuality, lesbianism, masochism, masturbation, necrophilia,
orgies, pederasty, pedophilia, sadism, sodomy, transexuality,
transgenderism, or transvestitism, the school district shall provide
notice as described in Section 51563 to the parent or guardian of the
pupil, in writing, no more than 15 days and no less than 10 days in
advance of the instruction or counseling, and shall obtain the
written approval of the pupil's parent or guardian consenting to the
instruction or counseling. A school district shall provide a separate
notice as described in Section 51563 to the parent or guardian of a
pupil, and shall obtain the separate written approval of the pupil's
parent or guardian for each day the school district will provide
instruction or counseling on subjects specified in this section.
51562. Instruction or counseling shall not be provided to, or in
the presence of, a pupil in kindergarten or grades 1 to 6, inclusive
on the subjects specified in Section 51561 in a public school
setting.
51563. The notice required in Section 51561 shall be titled
"Request for Parental Approval of Specified Sexual Instruction or
Counseling" and this title shall be printed at the top of the page,
in boldface and no less than 16 point type, and shall be immediately
followed by the text of Sections 51561 and 51562 in no less than 14
point type. The notice shall include all of the following
information printed in no less than 12 point type: (a) The date,
time, and location of the instruction or counseling.
(b) The name of the teacher or administrator in charge of the
instruction or counseling, and the name and affiliation of any
presenters.
(c) The telephone number at which the teacher or administrator in
charge may be reached during regular school hours.
(d) A reminder that parents and guardians may attend the class or
assembly.
(e) A detailed and accurate description of the instruction to be
provided, including, but not limited to, the scope and content of any
activity, counseling, instruction, program, or testimonial, and
copies of any audio or visual presentation, curriculum, handout,
illustration, literature, poster, survey, test, or text, and the
address of any Internet site to be used in the instruction.
51564. An audio or visual presentation, curriculum, handout,
illustration, literature, poster, survey, test, or text to be used in
the instruction or counseling of any of the subjects specified in
Section 51561 shall be kept in a school office, out of the sight of
pupils, and shall be available for inspection and copying by any
parent, guardian, or agent of the parent or guardian of a pupil
beginning at least 15 days in advance of, and for at least 15 days
after, the instruction or counseling. The school district shall
retain the original written approval required pursuant to Section
51561 for at least 90 days. A parent, guardian, or agent of the
parent or guardian of a pupil is entitled to inspect and copy the
written approval submitted by that parent or guardian upon request. A
school district may charge a reasonable fee to cover costs
associated with copying.
51565. If a parent or guardian of a pupil does not provide
written approval pursuant to Section 51561, the pupil shall be
excused from the instruction or counseling, and offered other
activities worth equal credit. A pupil may not be academically
penalized if his or her parent or guardian does not provide written
approval pursuant to Section 51561. If the parents or guardians of a
majority of the pupils in a class or assembly do not provide written
approval pursuant to Section 51561, then the school district shall
not conduct the instruction or counseling relating to the subjects
specified in the notice provided pursuant to Section 51563 in that
class or assembly, but may conduct the instruction or counseling with
pupils whose parents have provided written approval at an alternate
location and time.
51566. A school district that is determined to be in violation of
Section 51561 or 51562 by a court of competent jurisdiction shall be
liable to the pupil or the parent or guardian of the pupil for
damages in the amount of five thousand dollars ($5,000) per incident,
for actions filed between January 1, 2006, and December 31, 2007.
Beginning January 1, 2007, the amount of damages shall be adjusted
annually by an inflation factor based on the change in the California
Consumer Price Index. In any action brought under this section, the
school district has the burden of proving by a preponderance of the
evidence that it complied with the notice and written approval
required by Section 51561. A prevailing plaintiff is entitled to
reasonable attorney fees and court costs.
51567. (a) This article shall not be construed to prevent or
limit a school district from disciplining any person who engages in
unlawful conduct with respect to a pupil or school district employee.
(b) This article does not apply to instruction or counseling
regarding the prevention of disease that is federally approved, or to
individual pupils who request confidential counseling with a school
psychologist or peace officer.
(c) This article does not apply to a pupil who is 18 years of age
or older.
(d) This article shall be liberally construed in favor of
prohibiting instruction on the subjects specified in Section 51561.
(e) The provisions of this article are severable. If any provision
of this article or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
SEC. 2.
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.