BILL ANALYSIS �
SB 1154
Page 1
Date of Hearing: June 27, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
SB 1154 (Walters) - As Amended: June 20, 2012
SENATE VOTE : 33-0
SUBJECT : Instructional materials: digital format
SUMMARY : Requires a publisher or manufacturer of printed basic
and supplemental instructional materials to offer equivalent
digital formats, at a lower cost than the cost of the purchased
printed format. Specifically, this bill :
1)Requires a publisher or manufacturer submitting a printed
instructional material for adoption by the State Board of
Education (SBE) or the governing board of a school district to
offer the instructional material in an equivalent digital
format, at a lower cost than the cost of the purchased printed
format.
2)Requires a publisher or manufacturer of printed supplemental
instructional materials approved by the SBE or the governing
board of a school district to offer the printed supplemental
instructional materials in an equivalent digital format, at a
lower cost than the cost of the purchased printed format.
3)Provides that if a publisher or manufacturer cannot obtain
copyright due to a third-party contract conflict, an
equivalent digital format may be substituted with comparable
digital material when adopting instructional materials as
follows:
a) For kindergarten to grade 8, inclusive, the SBE may
review and approve substitutions to ensure alignment with
the pertinent state subject matter content standards.
b) For grades 9 to 12, inclusive, the governing board of a
school district may review and approve substitutions to
ensure alignment with the pertinent state subject matter
content standards.
4)Requires instructional material or supplemental instructional
materials to be offered by a publisher or manufacturer as
unbundled elements to enable the digital material or printed
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material to be purchased separately from other components.
5)Stipulates that a publisher or manufacturer that submits
printed instructional material for adoption or approval by the
SBE or the governing board of a school district shall offer
the school district an equivalent digital format of the
instructional material that was purchased in print format
which may be used by the school district to create a
district-wide online digital database for classroom use.
6)States that a school district shall not be prevented from
entering into an agreement to create a district-wide online
digital database with the publisher of the instructional
materials, or a third party approved by the publisher, for
classroom or individual pupil use if the school district
implements an online security system that is mutually agreed
on by the publisher and the school district.
7)Stipulates that a purchase agreement entered into for purposes
of #6 may include, but is not limited to, a description of
reasonable security measures that may include, but are not
limited to, the use of a login identification and password to
protect and control access to online material and a
description of any licensing agreements for access to online
material, if applicable.
8)Requires the instructional material or supplemental
instructional material to be available in both printed and
digital formats for the duration of the adoption.
9)Exempts small publishers and small manufacturers of
instructional materials from the provisions of this bill and
defines "small publisher" and "small manufacturer" as an
independently owned or operated publisher or manufacturer
that, together with its affiliates, has 100 or fewer employees
and average annual gross receipts of ten million dollars
($10,000,000) or less over the previous three years.
10)Provides that this bill does not authorize the use of
instructional materials that would constitute an infringement
of copyright under the federal Copyright Revision Act of 1976.
11)Requires this bill to be implemented in accordance with the
suspension of the instructional material adoption process
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pursuant to current law.
12)States that this bill does not require a publisher or
manufacturer that submits an instructional material in digital
format only for adoption by the SBE or the governing board of
a school district to offer or submit an equivalent print
version of the instructional material in digital format.
EXISTING LAW :
1)Requires, in the California Constitution, the SBE to adopt
textbooks for use in grades 1-8, inclusive, throughout the
state to be furnished without costs.
2)Prohibits the SBE from adopting instructional materials or
follow the procedures for the adoption of instructional
materials until the 2015-16 school year.
3)Authorizes school districts to include relevant
technology-based materials when adopting instructional
materials if the materials are both available and comparable
to other, equivalent instructional materials.
4)Requires the governing board of each school district
maintaining one or more high schools to adopt instructional
materials for use in the high schools under its control, and
specifies that only instructional materials of those
publishers who comply with the specified requirements may be
adopted by the district board.
5)Defines "Technology-based materials" as basic or supplemental
instructional materials that are designed for use by pupils
and teachers as learning resources and that require the
availability of electronic equipment in order to be used as a
learning resource. Technology-based materials include, but are
not limited to, software programs, video disks, compact disks,
optical disks, video and audiotapes, lesson plans, and
databases.
6)Requires pupils be provided with standards-aligned textbooks
or basic instructional materials by the beginning of the first
school term that commences no later than 24 months after those
materials were adopted by the SBE, however for the 2008-09 to
2014-15 fiscal years, school districts are not required to
provide pupils with instructional materials by a specified
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period of time following adoption of those materials by the
State Board of Education (SBE). States that school districts
are not relieved of their obligations to provide every pupil
with textbooks or instructional materials during this time.
7)Defines "sufficient textbooks or instructional materials" to
mean that each pupil, including English learners, has a
standards-aligned textbook or instructional materials, or
both, to use in class and to take home, but does not require
two sets of textbooks or instructional materials to be
purchased for each pupil. States that instructional materials
may be in a digital format as long as each pupil, at a
minimum, has and can access the same materials in the class
and to take home, as all other pupils in the same class or
course in the district and has the ability to use and access
them at home.
8)Requires the CDE to recommend, and the SBE to approve,
evaluation criteria to guide the development and review of
supplemental instructional materials for English language arts
and mathematics to provide a bridge between the California
common core academic content standards and the
standards-aligned instructional materials currently being used
by local educational agencies. Requires the SBE to approve or
reject all, or a portion, of a list of supplemental
instructional materials proposed by the CDE and authorizes the
SBE to add an item to that list, as specified.
9)Allows the governing board of a school district to approve
supplemental instructional materials other than those approved
by the SBE if the governing board performs specified reviews
and determines that other supplemental instructional materials
are aligned with the California common core academic content
standards and meet the needs of the pupils of the district.
FISCAL EFFECT : Unknown
COMMENTS : This bill requires a publisher or manufacturer of
adopted instructional materials or supplemental materials to
offer the instructional material in an equivalent digital
format, at a lower cost than the cost of the purchased printed
format and stipulates that the materials may be used by the
school district to create a district-wide online digital
database for classroom use.
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The proliferation of technology in recent years has not
translated into increased access to technology in schools. The
limited resources or lack thereof have often limited a
district's ability to provide technology-based or electronic
versions of instructional materials to its pupils. School
districts and the State have grappled with funding challenges
but also challenges of ensuring equal access to technology for
all students. Current law requires all schools to provide each
pupil, including English learners with a standards-aligned
textbook or instructional materials, or both, to use in class
and to take home and allows the materials to be in a digital
format as long as pupils in the same class or course have access
to the same materials at school and at home. The intent is to
ensure that all pupils have adequate and equal access to
instructional materials even if a school or district chooses to
adopt digital instructional materials.
Publisher requirements : Even though current law does not
require publishers to submit materials in electronic formats,
several publishers have already been doing so. A 2007 study of
previous SBE adoptions showed that publishers were beginning to
make electronic editions of their materials available as an
alternate format to their print textbooks. Furthermore, the
last couple of adoptions have seen a number of publishers submit
programs that have an integrated electronic component, or in
some cases, are entirely technology-based. A review of the SBE
adoption lists for the core subject, standards-aligned adoptions
since 2005 shows that the number of electronic editions of
adopted instructional materials has increased significantly.
For example, the 2007 math adoption includes 22 basic programs,
10 of which are available in an optical disk (CD or DVD-ROM),
two are available as online texts, and one program has an
integrated electronic component. The 2008 reading language arts
(RLA) adoption included various electronic components.
At this time, it appears that the issue is not the lack of
availability of such materials but rather the resources
available to ensure all students have access to such materials.
However, an argument can be made that requiring all basic and
supplemental instructional materials to be available in digital
formats may give school districts more options to select
materials from.
Online database : This bill additionally provides that a school
district shall not be prevented from entering into an agreement
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to create a district-wide online digital database with the
publisher of the instructional materials, if the school district
implements an online security system that is mutually agreed on
by the publisher and the school district. Additionally, this
bill stipulates that a purchase agreement entered into for
purposes of an online database may include, but is not limited
to, a description of reasonable security measures that may
include, but are not limited to, the use of a login
identification and password to protect and control access to
online material and a description of any licensing agreements
for access to online material, if applicable. Given the
permissive nature of the Education Code, and the fact that
nothing in current law would prohibit a district from entering
into such a contract, all the permissive language in this bill
may not be necessary.
According to the sponsor of this bill, the Association of
California School Administrators, the intent with this language
is to ensure that any contractual agreement for the use of
digital format across schools and classrooms is mutually agreed
upon by the school district and the publisher. In an effort to
simplify and clarify this language, Staff recommends an
amendment to delete lines 21-39, inclusive, on page 3 and
instead insert " Digital instructional materials purchased by a
school district may be used by the school district to create a
districtwide online digital database for classroom use
consistent with an online security system that is mutually
agreed on by the publisher and the school district."
Unbundled components : This bill requires instructional
materials or supplemental instructional materials to be offered
as unbundled elements to enable materials to be purchased
separately from other components. School districts have argued
that oftentimes the options for K-8 instructional materials come
in bundled programs, which in some cases results in very high
prices of instructional materials. Some districts do not always
use or need all of the elements in the bundled program, yet they
have to purchase the entire package. According to the CDE,
materials are already unbundled as publishers are able to sell
any part of their program and do so already. To the extent,
unbundling is already existing practice; this bill codifies that
practice and requires materials to be offered as unbundled
elements.
Costs : While some may argue that digital/electronic versions of
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instructional materials are less costly, others would argue that
taking into account the technical support that may be necessary
to ensure that the pupil can access that material, and to
troubleshoot any technical problems that may arise do not
necessarily lead to less costs. Additionally, an argument has
been made by publishers that "the savings of paper and ink are
outweighed by the costs of programmers, digital artists,
servers, website costs, and major expenses for maintenance of
sites and access."
Requiring digital formats to be offered at a lower cost than the
print format, raises the fear that the unintended consequence
may be that the price of the print materials may be increased to
offset the lower cost requirement for the digital formats. The
author may wish to consider an amendment to instead require that
the digital materials be offered "at the same or lower cost"
than the print format.
As a result of the fiscal climate in the state, adoptions of
instructional materials have been suspended until the 2015-16
fiscal year, thus there are no adoptions taking place at the
moment and districts are not required to purchase instructional
materials by a specified timeline. This bill requires that the
provisions of this bill be implemented consistent with these
timelines.
Availability of digital instructional materials : The recently
revised Title 5 of the California Code of Regulations Section
9523 currently stipulates that publishers must "provide the CDE
with a URL �uniform resource locator] to those instructional
materials intended for student use that are being submitted for
adoption, and the CDE shall post on its website direct
hyperlinks to the URLs provided by the publishers. The
instructional materials posted on each publisher's website shall
be identical to the hard copy version of the instructional
materials submitted for adoption, except that copyrighted items
that do not allow for posting online may be omitted and replaced
by a description of the omitted item, and any online features
that are absent from the hard copy version shall be identified."
This requirement for posting is within the context of public
inspection of materials being considered for adoption and not
necessarily in the context of purchasing these materials. This
means that there is currently no requirement for publishers to
ensure the digital materials are available beyond the submission
period and for purchase by districts. This bill requires the
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materials to be available in both print and digital format for
the duration of the adoption.
It appears that many of the larger publishers are already moving
in the direction of including digital versions of instructional
materials, and thus this may not create a significant burden on
those publishers. However, it is not clear that the smaller
publishers will be able to meet the requirements in this bill.
This bill exempts small publishers from these requirements.
Supplemental instructional materials : This bill requires
supplemental instructional materials approved by the SBE or
governing board of a school district to be made available in
digital format. Supplemental instructional materials are not
typically approved. Districts have the flexibility to purchase
any supplemental instructional materials as long as the
materials meet the social content requirements. The only
supplemental instructional materials that the SBE is required to
approve are the bridge supplemental materials for purposes of
the common core standards transition and this is a one-time
activity. Staff recommends the bill be amended to strike the
following language on page 3, lines 2-3: "approved the state
board or governing board of a school district"
Conflict with a previously-approved bill : This Committee passed
a similar bill, AB 1790 (Hagman), which requires publishers to
ensure that instructional materials are available in both print
and digital formats. AB 1790 deals with basic instructional
materials whereas this bill deals with both basic and
supplemental instructional materials and other elements. AB
1790 passed the Senate Education Committee, however the
Committee asked the author of AB 1790 to work with the author of
this bill to address the differences and to avoid having
duplicate bills in this area. In an effort to eliminate
conflicts between the two bills, the authors have been working
with staff of this Committee and the Senate Education Committee.
The authors have agreed, and staff recommends , the following
amendments to resolve the conflicts between the two bills:
1) Insert contingent enactment language in both bills. The
effect is that both bills have to be passed and signed in
order for any of the provisions in these bills to be
enacted.
2) Amendments to this bill (SB 1154):
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a. Replace the code section number from 60064 to
60063. Both bills will then add the same section
number and the language from both bills will be added
to the same code section.
b. On page 2: Delete the requirement that
publishers submitting printed instructional materials
for adoption by the SBE or the governing board of a
school district offer equivalent digital formats.
(Subdivision (a))
c. On page 2: Retain the requirement that digital
instructional materials be offered at the same or
lower costs (Part of existing language with suggested
amendment).
d. On page 4: Delete the provision requiring
instructional materials and supplemental materials to
be available in both print and digital formats for the
duration of the adoption. (Subdivision (f))
3) Amendments to AB 1790 (Hagman):
a. On page 2, line 7, after "in" insert: "an
equivalent" and delete "a." This will conform the
language to SB 1154 to ensure the digital versions of
the materials are equivalent.
b. On page 2, delete subdivisions (b)-(d)
inclusive.
The above amendments resolve the conflicts and make the bills
complementary.
Author's statement , "The digitization of education is sweeping
through America, as more school districts are implementing
technology and seeing remarkable results. Florida, Maine,
Washington, Utah, and Alabama have all passed measures to make
digital textbooks a reality in public schools. Yet, it is a
widespread disappointment that Californian schools are not fully
grasping the technological opportunities."
Arguments in support : The Association of California School
Administrators writes, "Given the dire fiscal crisis schools are
facing, SB 1154 takes important steps towards greater local
flexibility and negotiating ability and increases access to
digital materials so that students have greater access in the
classroom, in the library and at home to use their textbooks via
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digital format."
Arguments in opposition : The Association of American Publishers
writes, "Generally, SB 1154 would allow unlimited use of and
reproduction of all state-adopted instructional content, without
compensation to the publishers, authors or third-party
contributors and without regard to legal limitations on content
licensed from others."
Related legislation : AB 1790 (Hagman) Requires a publisher or
manufacturer submitting instructional materials for adoption by
the State Board of Education (SBE) or the governing board of a
school district to ensure that the instructional materials are
available in both print and digital formats, during the entire
term of the adoption. AB 1790 is pending on the Senate Floor.
AB 1246 (Brownley) revises the process for adopting
instructional materials for use in kindergarten and grades 1-8,
inclusive (K-8). AB 1246 is pending in the Senate Education
Committee.
Previous legislation : AB 1398 (Blumenfield) Chapter 293,
Statutes of 2009, changes the definition of "technology-based
materials," for purposes of the instructional materials and
testing part of the Education Code, to specify that
technology-based materials do not include the electronic
equipment required to make use of those materials, unless that
equipment is to be used by pupils and teachers as a learning
resource; and provides that this definition does not relieve a
school district of the obligation to provide pupils with
sufficient textbooks as specified.
AB 2211 (Fuentes) Chapter 254, Statutes of 2010, amends the
definition of "sufficient textbooks or instructional materials"
to state that instructional materials may be in a digital format
as long as each pupil, at a minimum, has and can access the same
materials in the class and to take home, as all other pupils in
the same class or course in the district and has the ability to
use and access them at home.
AB 1010 (Pavley) of 2004 requires a publisher that makes basic
instructional materials available to a school district in a hard
copy format to also make instructional materials available in an
electronic multimedia format upon adoption of instructional
materials after January 1, 2005, by the State Board of Education
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or by the governing board of a school district that maintains a
high school. Makes these requirements operative January 1,
2007, and provides that a school district that purchases
instructional materials in an electronic multimedia format
pursuant to the bill shall comply with specified law governing
instructional materials. AB 1010 was vetoed by Governor
Schwarzenegger with the following veto message:
"While I support the idea of using an electronic multimedia
format, it is crucial that we remain focused on providing all
pupils with an actual textbook in core curricula areas. In
addition, I am concerned about the rising costs of textbooks and
this bill could create increased costs to the State in the form
of higher textbook costs for publishers to comply with the
electronic multimedia format requirement. Higher costs could
make it more difficult for schools to ensure that pupils have
adequate textbooks which was a cornerstone of the Williams v.
State of California settlement agreement."
REGISTERED SUPPORT / OPPOSITION :
Support
Association of California School Administrators (sponsor)
Children Now
San Francisco Unified School District
Opposition
Association of American Publishers
Analysis Prepared by : Marisol Avi�a / ED. / (916) 319-2087