BILL ANALYSIS �
AB 746
Page 1
ASSEMBLY THIRD READING
AB 746 (Campos)
As Amended April 7, 2011
Majority vote
EDUCATION 7-1
-----------------------------------------------------------------
|Ayes:|Brownley, Ammiano, | | |
| |Buchanan, Butler, Carter, | | |
| |Eng, Williams | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner | | |
| | | | |
-----------------------------------------------------------------
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.
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.
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
AB 746
Page 2
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."
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 (EC)
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 classwork, creating substantial disorder,
and invading the rights of either school personnel or pupils by
creating an intimidating or hostile educational environment (EC
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, (CV 08-03824 SVW) 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
AB 746
Page 3
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, (807 A.2d 803 (Pa. 2002)) 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
school districts' anti-bullying policies defining cyber bullying
as bullying by use of any electronic communication device,
including blogs. NCSL also reports that in 2008, the 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.
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 an 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
AB 746
Page 4
bullying has become a problem for school districts and
youth-based organizations."
Arguments in Support: The author of this bill states that this
bill "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.
Analysis Prepared by : Tania Herrera and Sophia Kwong Kim /
ED. / (916) 319-2087
FN: 0000180