BILL ANALYSIS �
AB 746
Page 1
Date of Hearing: March 30, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 746 (Campos) - As Introduced: February 17, 2011
SUBJECT : Pupils: cyber bullying
SUMMARY : Specifies that bullying by means of an electronic act
includes a post on a social network Internet Web site.
Specifically, this bill :
1)Expands the definition of an "electronic act" to include a
post on a social network Internet Web site.
2)Adds bullying through "the posting of messages on a social
network Internet Web site" to the list of issues school
districts are encouraged to address within their strategies to
improve school attendance and reduce school crime and
violence.
EXISTING LAW :
1)Encourages school districts, county offices of education, law
enforcement agencies, and agencies serving youth to develop
and implement interagency strategies, in-service training
programs, and activities that will improve school attendance
and reduce school crime and violence, including vandalism,
drug and alcohol abuse, gang membership, gang violence, hate
crimes, bullying, including bullying committed personally or
by means of an electronic act, teen relationship violence, and
discrimination and harassment, including, but not limited to,
sexual harassment.
2)Prohibits the suspension, or recommendation for expulsion, of
a pupil from school unless the principal determines that the
pupil has committed any of various specified acts, including
but not limited to bullying by means of an electronic act, as
defined.
3)Defines "bullying" as one or more acts by a pupil or group of
pupils engaging in sexual harassment, hate violence,
harassment, threats, or intimidation.
4)Defines an "electronic act" as the transmission of a
AB 746
Page 2
communication, including, but not limited to, a message, text,
sound, or image by means of an electronic device, including,
but not limited to, a telephone, wireless telephone or other
wireless communication device, computer, or pager.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS : AB 86 (Lieu), Chapter 646, Statutes of 2008, added
bullying, including bullying by means of an electronic act to
the list of reasons for which a student may be suspended or
recommended for expulsion. An electronic act is defined as the
transmission of a communication, including, but not limited to,
a message, text, sound, or image by means of an electronic
device, including, but not limited to, a telephone, wireless
telephone or other wireless communication device, computer, or
pager. This bill adds posts on a social network site to the
definition of an electronic act.
What Is a Social Network ? A "social network site" is not
defined in the bill, but according to Social Network Sites:
Definition, History, and Scholarship by Danah M. Boyd and Nicole
B. Ellison (Michigan State University, 2007), "a social network
site is a web-based service that allows individuals to (1)
construct a public or semi-public profile within a bounded
system, (2) articulate a list of other users with whom they
share a connection, and (3) view and traverse their list of
connections and those made by others within the system. The
nature and nomenclature of these connections may vary from site
to site."
Freedom of Speech or School Safety? Can school officials
discipline a student based on speech or actions that were not
conducted at school? Would such discipline violate the
student's freedom of speech? Existing law states that a pupil
may be suspended or expelled for any of the specified acts and
related to school activity or attendance that occur at any time,
including: while on school grounds, while going to or coming
from school, during the lunch period whether on or off the
campus, and during, or while going to or coming from, a school
sponsored activity (Education Code Section 48900). Existing law
also states that a pupil may be suspended or expelled if the
pupil has intentionally engaged in harassment, threats, or
intimidation, directed against school district personnel or
pupils, that is sufficiently severe or pervasive to have the
actual and reasonably expected effect of materially disrupting
AB 746
Page 3
classwork, creating substantial disorder, and invading the
rights of either school personnel or pupils by creating an
intimidating or hostile educational environment (Education Code
Section 48900.4).
The courts have ruled that disciplinary action as a result of
bullying via a social network site is contingent on whether the
action causes a substantial disruption to school activities or
work of a school, regardless of where the action took place. If
a student is suspended or expelled and the activity is not found
to have caused substantial disruption, it could constitute a
violation of freedom of speech. This is based on the 1969 case
of Tinker v Des Moines Independent Community School District
(393 U.S. 503, 506; 1969).
Examples : In the 2010 case of J.C. v Beverly Hills Unified
School District, a student posted a video of her friends off
campus insulting a fellow classmate; the classmate went to a
counselor in tears and not wanting to attend class. The student
behind the camera was suspended for two days by the principal.
The suspended student, with her parents, filed a lawsuit against
the school district and school staff in federal court. The
court ruled the video impacted the harassed classmate but did
not result in a substantial disruption of school activities and
therefore the suspension constituted a violation of free speech.
In the 2002 Pennsylvania case of J.S. v. Bethlehem Area School
District, a teacher was frightened to where she was no longer
able to teach for the remainder of the school year after
discovering a student's Web site where the teacher's life was
threatened with words and gruesome images. The student was
expelled. Other students were affected both by the volatile Web
site and by the teacher's departure, while parents voiced
disapproval of the series of substitute teachers that replaced
the teacher. The expelled student and his/her parents filed the
lawsuit against the school district. The court ruled that "the
web site created disorder and significantly and adversely
impacted the delivery of instruction . . . to a magnitude that
satisfies the requirements of Tinker." The court, therefore,
saw the Web site as causing a substantial disruption to school
activity.
Nationwide : According to the National Conference of State
Legislatures (NCSL), in 2008, Kansas added cyber bullying to
AB 746
Page 4
school district's anti-bullying policies defining cyber bullying
as bullying by use of any electronic communication device
including blogs. NCSL also reports that in 2008, Maryland
legislature required the State Board of Education to develop a
model policy which defines bullying to include electronic
communication that creates a hostile education environment by
substantially interfering with a student's educational benefits,
opportunities, or performance, or with a student's physical or
psychological well-being.
Is Existing Law Sufficient? It can be argued that existing law
already allows suspension and expulsion for bullying using
social network sites because postings are done with computers
and the definition of electronic act includes transmission of
communication through computers. Further, the author that
established the definition of electronic act (AB 86) made this
statement regarding his proposed legislation, which shows his
intent to include social network sites: "As web-based social
networking sites, such as Myspace and Facebook become more and
more popular, cyber bullying has become a problem for school
districts and youth-based organizations."
Arguments in Support : The author of this bill states that AB
746 "recognizes both the tremendous leap in popularity of social
networking sites since the inception of our anti-bully law, and
the potential that the resulting popularity has in increased
ability for cyber bullies to spread their messages, by making
clear that posting messages upon a social network site is
covered under the Education Code anti-bullying provisions."
Harassment may take place off campus, but the effects on the
student are endured daily on campus, and in the presence of
their harasser or harassers. In the case of one New York high
school student, the student was harassed online through a social
network site. The online harassment led the high school senior
to commit suicide only a few months before graduation.
Previous Legislation : AB 86 (Lieu), Chapter 646, Statutes of
2008, added bullying and bullying by means of an electronic act
to the list of reasons for which a student may be suspended or
recommended for expulsion.
AB 746
Page 5
Related Legislation : AB 9 (Ammiano), pending in this Committee,
adds alternative disciplinary action other than suspension or
expulsion for pupils found to have committed an act of bullying.
The bill requires school districts to: adopt a policy
prohibiting discrimination, harassment, intimidation, and
bullying, and have the statements accessible and visible to all
pupils and school personnel, adopt a process for receiving and
investigating complaints of discrimination, harassment,
intimidation, and bullying, and offer training for school
personnel covering the topics mentioned. The bill also requires
the Superintendent of Public Instruction to post online a list
of resources that provide support to youth who have undergone
harassment, intimidation or bullying, and requires all local
educational agencies to collect data related to pupil
experiences with these issue areas.
AB 630 (Hueso), pending in the Assembly Rules Committee,
encourages school districts to reduce bullying by establishing
training programs that would educate pupils by increasing their
awareness of bullying.
AB 1156 (Eng), pending in this Committee, amends the development
of school safety plans to include training of schoolsite
personnel in the prevention of bullying, amends residency
requirements for school district attendance to include a pupil
who has been the victim of bullying by another pupil of that
district, as determined by personnel of their district, and
expands authorization of suspension or expulsion for acts of
"bullying" to include those acts that are or can be reasonably
predicted to effect physical, mental health, academic
performance, participation, or fear of harm of the pupil.
AB 1253 (Davis), pending the Assembly Rules Committee, expresses
intent to make it easier for pupils and their parents or
guardians to report incidents of bullying.
SB 453 (Correa), pending in the Senate Rules Committee, expands
authorization of suspension or expulsion for acts of bullying to
include those acts motivated by any of the following actual or
perceived characteristics of the victim: disability, gender,
nationality, race or ethnicity, religion, sexual orientation, or
association with a person or group with one or more of these
actual or perceived characteristics.
AB 746
Page 6
REGISTERED SUPPORT / OPPOSITION :
Support
California Police Chiefs Association
California Probation Parole and Correctional Association
Regional Human Rights/Fair Housing Commission
School for Integrated Academics and Technologies
Opposition
None on file.
Analysis Prepared by : Tania Herrera and Sophia Kwong Kim /
ED. / (916) 319-2087