BILL ANALYSIS �
SB 919
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Date of Hearing: July 6, 2011
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
SB 919 (Lieu) - As Amended: June 28, 2011
SENATE VOTE : 38-0
SUBJECT : School safety: sexting
SUMMARY : Adds sexting as an act for which a pupil may be
suspended or expelled and establishes a definition of sexting.
Specifically, this bill :
1)Makes findings and declarations that include the following:
a) The phenomenon of sharing sexually suggestive or
explicit materials, known as sexting, has become a
pervasive problem for many school districts.
b) Pupils who are subjected to sexting may suffer long-term
social, emotional and psychological harms as a result of
harassment and bullying.
c) It is the public policy of the state to reduce and
eliminate sexting so all pupils can have a safe school
environment.
2)Encourages districts to provide grade-level appropriate
instruction, counseling and other conflict resolution
practices for students on the potential risks and consequences
of creating and sharing sexually suggestive or explicit
materials through cellular telephones and other electronic
devices, provide professional development training, and adopt
district policies to prevent and discourage sexting.
3)Adds sexting to the Interagency School Safety Demonstration
Act, which encourages interagency coordination between local
educational agencies, law enforcement agencies and agencies
serving youths, and establishes the School/Law Enforcement
Partnership to develop and implement interagency strategies,
in-service training programs and activities that will improve
school attendance and reduce school crime and violence.
4)Defines "sexting" to mean the dissemination of, or the
solicitation or incitement to disseminate, a photograph or
other visual recording that depicts a minor's exposed or
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visible genitals, pubic area, rectal area, or the nipple or
areola of a female's breast by a pupil to another pupil or to
school personnel with the intent to humiliate or harass.
5)Specifies that "sexting" does not include a depiction,
portrayal, or image that has any serious literary, artistic,
educational, political, or scientific value or that involves
athletic events or school sanctioned activities.
6)Adds sexting to the list of offenses for which a pupil may be
suspended or recommended for expulsion.
EXISTING LAW:
1)Under the Interagency School Safety Demonstration Act of 1985
(Education Code 32260 et seq.), expresses the Legislature's
recognition that all pupils enrolled in a public school have
the inalienable right to attend classes on school campuses
that are safe, secure, and peaceful, and establishes the
School/Law Enforcement Partnership comprised of the
Superintendent of Public Instruction and the Attorney General
for the development and administration of safe school programs
and policies.
2)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.
3)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.
4)Defines "bullying" as one or more acts by a pupil or group of
pupils engaging in sexual harassment, hate violence,
harassment, threats, or intimidation.
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5)Defines an "electronic act" 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.
FISCAL EFFECT : Unknown
COMMENTS : School-based harassment, discrimination, intimidation
and bullying can create a school climate of fear and disrespect
that can result in conditions that negatively affect learning.
Bullying is defined as an act by a pupil engaging in sexual
harassment, hate violence, harassment, threats or intimidation
that may include bullying committed via an electronic act that
includes, but is not limited to, a message, text, sound, or
image by means of an electronic device (a telephone, wireless
telephone or other wireless communication device, computer or
pager).
A 2008 survey conducted by the National Campaign to Prevent Teen
and Unplanned Pregnancy and CosmoGirl.com found that 20% of
teens between the ages of 13 to 19 have electronically sent, or
posted online, nude or semi-nude pictures or videos of
themselves, while 36% of teen girls and 39% of teen boys report
that nude or semi-nude photos are commonly shared with people
other than the intended recipient. The survey also noted that
sending and posting nude or semi-nude photos or videos starts at
a young age and can become more frequent as teens become adults.
According to the Center for Safe and Responsible Internet Use,
based in Oregon, "sexting" is a combination of two terms, "text"
and "sex".
The author states, "In today's society, a mere push of a button
can make any image viral on the Internet or to a stranger's cell
phone within a few seconds. While our advanced technology has
brought us closer together as a society, it also has left our
children susceptible to the dissemination of their image.
Additionally, sexting is now becoming a form of relationship
currency for many young Californians - as many feel pressured to
send these images in order to get closer to another person.
Sexting has become a difficult problem for school districts to
deal with due to the alarming number of participating students.
SB 919 seeks to provide school administrators and principals
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with the specified enforcement tool to address sexting."
Sexting can lead to physical harm to a pupil being harassed via
an electronic image. The author cites, as an example, the story
of a 13-year-old girl in Florida who, in 2009, hanged herself
after being bullied and harassed when a topless photo of herself
she sent to a boy was spread within her own school and to a
nearby high school.
This bill adds sexting to the provision of law encouraging
interagency coordination between local educational agencies, law
enforcement agencies and agencies serving youths, and
establishes the School/Law Enforcement Partnership to develop
and implement interagency strategies, in-service training
programs and activities that will improve school attendance and
reduce school crime and violence. The bill also adds an act of
sexting to the list offenses for which a pupil may be suspended
or expelled. Lastly, the bill establishes a definition for
sexting to mean "the dissemination of, or the solicitation or
incitement to disseminate, a photograph or other visual
recording that depicts a minor's exposed or visible genitals,
pubic area, rectal area, or the nipple or areola of a female's
breast by a pupil to another pupil or to school personnel with
the intent to humiliate or harass." A prior version of the bill
defined sexting as the "sending or receiving of sexually
explicit pictures or video images by means of an electronic
act." Due to concerns by the American Civil Liberties Union
(ACLU) that the definition was too broad and could lead to
suspension of a student for actions that should not be subject
to school discipline (e.g., a student in a bikini while on a
school beach trip (ACLU)), the author worked with the ACLU on a
definition that specifies the types of images that may lead to
suspension or expulsion. However, the ACLU argues that the
penal code does not categorize breasts as "private parts" and
continues to have concerns with the inclusion of breasts, even
with just the nipple or areola, in the definition. The current
definition does not specify that sexting is committed through an
electronic act, even though the term sexting is commonly
understood as the sending of sexual images via texting. Staff
recommends an amendment to make this clarification.
Is the definition too narrow? While the definition in the bill
provides clarity to administrators, is it so narrow that
administrators may not be able to discipline a pupil who
circulates an image of another pupil, whose identity is
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identifiable, that shows some level of nudity but not the
specific body parts? Staff recommends adding another provision
in the definition of sexting to include situations where there
is harassment of an identifiable pupil through circulation of an
image of that pupil that may contain exposed body parts but not
specifically the parts cited in the current definition.
Is sexting already covered under bullying by means of an
electronic act? Current law defines "bullying" as one or more
acts by a pupil or group of pupils engaging in sexual
harassment, hate violence, harassment, threats, or
intimidation. Bullying via an "electronic act is 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. It can be argued that sexting is a form of
cyberbullying via an electronic act that is already covered by
existing law.
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
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 an electronic means 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
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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).
Related bills . There are a number of bills on bullying,
cyberbullying that affect suspensions and expulsions of pupils.
If all of the bills are passed, one or more of the bills may be
chaptered out. The bills with sections that conflict should be
double-jointed to prevent chaptering out problems.
AB 746 (Campos), pending on the Governor's desk, specifies that
bullying by means of an electronic act includes a post on a
social network Internet Web site.
AB 1156 (Eng), pending in the Senate Appropriations Committee,
makes several proposals related to bullying, including requiring
training in the prevention of bullying, authorizing a pupil to
transfer to another district and revising the definition of
bullying.
SB 453 (Correa), held in the Senate Appropriations Committee
suspense file this year, 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, and includes acts of bullying that have
persisted and reoccurred despite repeated efforts at remediation
and termination of the behavior by the principal or the
superintendent of schools on the list of acts for which
expulsion may be recommended.
REGISTERED SUPPORT / OPPOSITION :
Support
Greater South Bay Education Coalition
PeaceBuilders
Opposition
American Civil Liberties Union (prior version)
SB 919
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Analysis Prepared by : Sophia Kwong Kim / ED. / (916) 319-2087