BILL ANALYSIS
AB 349
Page 1
Date of Hearing: March 16, 2005
ASSEMBLY COMMITTEE ON EDUCATION
Jackie Goldberg, Chair
AB 349 (Mountjoy) - As Introduced: February 10, 2005
SUBJECT : Prohibited instruction: sexual instruction or
counseling
SUMMARY : Prohibits 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. Specifically, this bill :
1)Requires the school district to provide notice to the parent
or guardian of the pupil 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,
2)Requires the notice be in writing, no more than 15 days and no
less than 10 days in advance of the instruction or counseling,
and obtain the written approval of the pupil's parent or
guardian consenting to the instruction or counseling.
3)Requires a school district to provide a separate notice to the
parent or guardian of a pupil, and to 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.
4)Prohibits instruction or counseling from being provided to, or
in the presence of, a pupil in kindergarten or grades 1 to 6,
inclusive on the specified subjects in a public school
setting.
5)Requires the notice be specifically titled "Request for
Parental Approval of Specified Sexual Instruction or
Counseling" and that this specific title be printed at the top
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of the page, in boldface and no less than 16 point type, and
be immediately followed by the text of in the bill; as
specified, in no less than 14 point type.
6)Requires the notice to 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; and
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.
7)Requires 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 the bill be kept in a school office, out of the
sight of pupils.
8)Requires the above materials 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.
9)Requires the school district to retain the original written
parental approval for at least 90 days.
10)Specifies a parent, guardian, or agent of the parent or
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guardian of a pupil is entitled to inspect and copy the
written approval submitted by that parent or guardian upon
request.
11)Authorizes a school district to charge a reasonable fee to
cover costs associated with copying.
12)Specifies, if a parent or guardian of a pupil does not
provide written approval, the pupil shall be excused from the
instruction or counseling, and offered other activities worth
equal credit.
13)Prohibits a pupil from being academically penalized if his or
her parent or guardian does not provide written approval.
14)Prohibits the school district from conducting instruction or
counseling relating to the specified subjects in a class or
assembly if the parents or guardians of a majority of the
pupils do not provide written approval but the district may
conduct the instruction or counseling with pupils whose
parents have provided written approval at an alternate
location and time.
15)Specifies that a school district that is determined to be in
violation the provisions in the bill 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.
16)Requires, beginning January 1, 2007, the amount of damages be
adjusted annually by an inflation factor based on the change
in the California Consumer Price Index.
17)Specifies that 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 requirements.
18)Specifies that a prevailing plaintiff is entitled to
reasonable attorney fees and court costs.
19)Specifies this bill 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
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district employee.
20)Specifies this bill 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.
21)Specifies this bill does not apply to a pupil who is 18 years
of age or older.
22)Requires that the bill be liberally construed in favor of
prohibiting instruction on the subjects specified in the bill.
23)Specifies the provisions of this bill are severable. If any
provision of this bill 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.
24)Defines the following:
a) "Parent" as 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 the bill and that
instruction or counseling will be provided on one or more
of the subjects specified in the bill.
e) "Public school setting" includes any school sponsored
activity involving an employee, contractor, volunteer, or
agent of a school district, regardless of its location.
EXISTING LAW
1)Authorizes school districts to provide comprehensive sexual
health education, as defined, in any kindergarten to grade 12,
inclusive, and to ensure that all pupils in grades 7 to 12,
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inclusive, receive HIV/AIDS prevention education, as defined.
2)Requires that parents receive information about their ability
to request a copy of the statutes advising them of their right
to parental notification.
3)Specifies that the use of outside consultants or guest
speakers, as specified, is within the discretion of the school
district.
FISCAL EFFECT : Unknown.
COMMENTS : Purpose. According to the author, "Although schools
are not teaching all the listed sexual behaviors, they are
already teaching some of them to elementary school children.
Twenty years ago, few would have dreamed that we would need to
protect our children from these topics, to which many parents
have serious religious objections. Schools need to teach
biology and not behavior. This bill will prohibit public schools
from instructing K-6 pupils in specific sexual behaviors. If a
public school chooses to teach these topics to 7-12 pupils, the
district must provide written notice to the parent or guardian
10-15 days in advance, and obtain the parent's written
permission for their child to attend that instruction"
Existing law currently requires detailed parental notice
requirements related to the teaching of comprehensive sexual
health education and HIV/AIDS prevention education . Current law
specifies that parents have the right to excuse their child from
all or part of comprehensive sexual health education, HIV/AIDS
prevention education, and assessments related to that education.
Current law also specifies detailed parental notice requirements
for school districts regarding instruction in comprehensive
sexual health education and HIV/AIDS prevention education and
research on pupil health behaviors and risks that the district
plans for the coming year. Staff recommends the committee
consider whether additional notice requirements are necessary.
Prior related legislation
SB 71 (Kuehl), Chapter 650, Statutes of 2003 established the
California Comprehensive Sexual Health and HIV/AIDS Prevention
Education Act which consolidated various provisions relating to
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the instruction in the public schools on AIDS prevention,
venereal disease and other sexually transmitted diseases, sex,
and abstinence from sexual activity, and the manner in which
parents or guardians may excuse their child from this
instruction.
AB 1925 (Haynes), Chapter 323, Statutes of 2004 required a
school district to notify the parent or guardian of a pupil if
comprehensive sexual health or HIV/AIDS prevention instruction
will be taught by outside consultants, or if that instruction is
to be provided through an assembly with guest speakers.
Arguments in support . According to the Capitol Resource
Institute, "This bill protects young children from exposure to
controversial sex education and respects the rights of parents
to direct the education of their children. Instruction on topics
listed in this bill (e.g. masturbation, sadism, homosexuality,
transgenderism, etc.) is not appropriate for young,
pre-pubescent children."
Arguments in opposition . According to the American Civil
Liberties Union (ACLU), "Current law respects parents' rights to
make decisions regarding their children's education, while
ensuring that those students who do participate in classes are
provided comprehensive, accurate and bias-free information.
Specifically, California law provides that parents must be
notified and allowed to excuse their children from sex education
and HIV/AIDS education. In addition, it provides that parents
may inspect the written and audiovisual materials used and that
the materials be age appropriate and medically accurate and
objective. AB 349 would impose a confusing and different
regimen requiring school districts to obtain consent from
parents before some sex education topics can be taught.
Moreover, it attempts to require parental consent for issues
unrelated to sex education (i.e. domestic partnership) that come
up in class and warrant full discussion."
REGISTERED SUPPORT / OPPOSITION :
Support
California Catholic Conference
California Concerned Women for America, San Diego & Imperial
Counties
Capitol Resource Institute
AB 349
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An individual
Opposition
American Association of University Women
American Civil Liberties Union
California Family Health Council
California Teachers Association
Analysis Prepared by : Misty Padilla / ED. / (916) 319-2087