BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-12 Regular Session
BILL NO: AB 746
AUTHOR: Campos
AMENDED: April 7, 2011
FISCAL COMM: No HEARING DATE: June 8, 2011
URGENCY: No CONSULTANT:Beth Graybill
SUBJECT : Pupils: Cyber bullying.
SUMMARY
This bill specifies that bullying by means of an electronic
act includes a post on a social network Internet Web site.
BACKGROUND
Existing law, the Interagency School Safety Demonstration Act
of 1985, establishes the School/Law Enforcement Partnership
comprised of the Superintendent of Public Instruction (SPI)
and the Attorney General for the development and
administration of safe school programs and encourages school
districts, county offices of education, law enforcement
agencies, and agencies serving youth to develop and implement
strategies, in-service training programs, and activities that
will improve school attendance and school safety. (Education
Code � 32260 et. seq.)
Existing law prohibits the suspension or the recommendation
of a pupil for expulsion from school unless a school district
superintendent or the principal of the school determines that
the pupil has committed certain specified acts, including
having engaged in an act of bullying and bullying committed
by means of an electronic act. Current law specifies that an
electronic act means the transmission of a communication,
including but not limited to a message, text, sound, or image
by means of an electronic device. (EC � 48900 and � 32261)
Existing law defines bullying to include acts of sexual
harassment, hate violence, or threats or intimidation
directed specifically toward a pupil or school personnel that
are sufficiently severe or pervasive as to have a disruptive
impact as specified.
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(EC � 48900.2, � 48900.3, and � 48900.4)
ANALYSIS
This bill :
1) Expands the definition of bullying committed by an
electronic act to include posting on a social network
Internet Web site.
2) Adds bullying committed by 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.
STAFF COMMENTS
1) Need for the bill : In recent years the Legislature has
considered a number of measures that concern cyber
bullying, which is the use of electronic devices and
information, such as e-mail, instant messages, text
messages, mobile phones, and Internet sites to send or
post harmful or hurtful messages or images about an
individual or group.
A publication from the U.S. Department of Justice, Office of
Juvenile Justice and Delinquency Programs (OJJDP) notes
that bullying can have short-term and long-term
psychological affects on both those who bully and those
who are bullied. Long-term consequences have been
linked to increases in criminal behavior and substance
abuse. Recently, a number of teen and youth suicides
have been traced to cyber bullying activities
perpetrated by the use of social networks to post
harassing, malicious, and intentionally harmful
messages. A 2001 report by the National Institute of
Child Health and Human Development (NICHD) estimated
that 1.6 million children in grades 6 through 10 in the
United States are bullied at least once a week and 1.7
million bully others frequently.
A 2007 report from the National Association of Attorneys
General Task Force on School and Campus Safety noted
that bullying is an important issue in examining school
violence and recommended states continue to implement
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and expand bullying prevention measures. The report
stated "Bullying was recognized as an important issue in
examining school violence. The growth in the use of
technology and social networking sites by younger
Americans has fueled a fear among professionals that
cyber bullying will become the means most often utilized
to harass, threaten, or otherwise cause distress." The
Task Force recommended that states "continue to
implement and expand bullying prevention measures,
including cyber bullying."
2) Is existing law sufficient ? Current law already defines
an electronic act to mean the transmission of a
communication by means of an electronic device. Given
that postings to social network sites must be done by
means of these devises, it could be argued that current
law provides school districts with sufficient authority
to suspend or expel a student who engages in bullying by
means of posting to social network sites such as MySpace
or Facebook. However, the author's office maintains
that while current law authorizes the suspension or
expulsion of pupils who engage in bullying by means of
an electronic act, the law does not expressly include
posting messages or images on a social network site
definition of how one may communicate by an electronic
act. By expanding the definition to include social
network
postings, the author hopes this bill will provide
greater guidance to schools in determining whether
harmful/hurtful social network postings may be
considered bullying.
3) Case law . Current law provides that a pupil may be
suspended from school or recommended for expulsion for
committing certain acts if they are related to school
activities or attendance that occur while the pupil is
on school grounds, while going to or coming from school,
during lunch periods (whether on or off campus), and
during, or while going to or coming from a school
sponsored activity. Additionally, a pupil may be
suspended or expelled for intentionally engaging in
harassment, threats, or intimidation that is
sufficiently severe or pervasive to have the "actual and
reasonably expected effect" of materially disrupting
classwork, or in the case of sexual harassment, to have
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a negative impact upon the individual's academic
performance or to create an intimidating, hostile, or
offensive educational environment.
An important question posed by this bill is whether cyber
bullying may be considered protected speech under the
First Amendment of the U.S. Constitution, and whether a
school district can discipline a student for conduct
that may occur outside of school hours. In Tinker v Des
Moines Independent Community School District (393 U.S.
503, 506, 1969), the U.S. Supreme Court ruled that
suspension or expulsion for an activity that does not
cause a substantial disruption could be a violation of a
student's freedom of speech. Thus, the "Tinker
standard" permits schools to regulate student speech
that could cause a "material and substantial disruption"
in the operation of a school or collide with the rights
of others.
More recently, in the case of J.C. v Beverly Hills Unified
School District, the court ruled that a student's
suspension was not justified because a video posted on
YouTube, while insulting to the victim, did not result
in a substantial disruption of school activities.
However, a recent California appeals court has ruled
that cyber bullying is not protected free speech if it
constitutes a hate crime, suggesting that school
officials operate under significant ambiguity in
determining when they may regulate cyber bullying.
While this bill will enable school officials to consider
hurtful social network postings as bullying, it may not
provide greater clarity about when that conduct meets
the substantial disruption standard.
4) Related and prior legislation
SB 453 (Correa) expands the definition of bullying to include
acts motivated by specified actual or perceived
characteristics of the victim, adds bullying, as
specified, to the list of acts for which expulsion may
be recommended, and requires school safety plans to
include policies and procedures relating to bullying.
This measure was passed by this Committee on a 7-0 vote.
SB 755 (Lieu) makes numerous changes to the requirement that
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each school have a school safety plan, imposes new
penalties for schools and districts that fail to meet
these requirements, and requires school districts and
county offices of education to be responsible for the
development of school safety plans, as specified. This
bill was passed by this Committee on a 7-2 vote.
SB 919 (Lieu) defines sexting as the sending or receiving of
sexually explicit pictures or video images via an
electronic act and adds sexting to the list of acts for
which a pupil may be suspended or expelled. This bill
was passed by this Committee on a 10-0 vote.
AB 9 (Amiano) adds alternative disciplinary action other than
suspension or expulsion for pupils found to have
committed an act of bullying.
AB 227 (Hall) adds the prevention of cyberbullying, content
control software, and the responsible use of mobile
communication technology to the components that are
required to be included in existing guidelines and
criteria for developing school district educational
technology plans.
AB 630 (Hueso) encourages school districts to reduce bullying
by establishing training programs that would educate
pupils by increasing their awareness of bullying. This
bill was held in the Assembly Appropriations Committee.
AB 1156 (Eng) requires the training of schoolsite personnel
in the prevention of bullying, allows a child who is a
victim of an act of bullying to meet residence
requirements in another district, and expands the
definition of bullying to include various specified
acts.
AB 86 (Lieu, Chapter 646, 2008) defined bullying to mean acts
that are committed personally or electronically, acts
directed against another pupil that constitutes sexual
harassment, hate violence, severe or pervasive
intentional harassment, threats, or intimidation and
gave school officials grounds to suspend a pupil or
recommend a pupil for expulsion for bullying. This bill
was passed by this Committee on a 7-2 vote.
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SUPPORT
California Police Chiefs Association
California Probation Parole and Correctional Association
California State PTA
California Teachers Association
Regional Human Rights/Fair Housing Commission
San Francisco Unified School District
School for Integrated Academics and Technologies
United Cerebral Palsy
OPPOSITION
None received.