BILL ANALYSIS �
SENATE COMMITTEE ON EDUCATION
Carol Liu, Chair
2013-2014 Regular Session
BILL NO: AB 1450
AUTHOR: Garcia
INTRODUCED: January 8, 2014
FISCAL COMM: No HEARING DATE: May 14, 2014
URGENCY: No CONSULTANT:Lynn Lorber
SUBJECT : Suspension or recommendation for expulsion:
cyber-bullying.
SUMMARY
This bill modifies the definition of bullying via an
electronic act, for the purposes of student suspension and
expulsion, from the "creation and transmission" of a
communication to the "creation or transmission" of a
communication by means of an electronic device.
BACKGROUND
Current law prohibits a student from being suspended or
recommended for expulsion unless the principal of the
school determines that the student has committed certain
acts, and gives schools the discretion to take action for
most offenses. (Education Code � 48900)
Students may be suspended for a first offense if the school
principal determines that the student committed certain
acts or that student's presence causes a danger to persons
or property or threatens to disrupt the instructional
process or the student committed certain acts. (EC �
48900.5)
Bullying
Relative to bullying, current law authorizes schools to
suspend or recommend for expulsion a student who engages in
an act of bullying, which is defined as any severe or
pervasive physical or verbal act or conduct, including
communications made in writing or by means of an electronic
act, directed toward one or more students that has or can
be reasonably predicted to have the effect of one or more
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of the following:
1) Placing a reasonable student or students in fear of
harm to that student's or those students' person or
property.
2) Causing a reasonable student to experience a
substantially detrimental effect on his or her
physical or mental health.
3) Causing a reasonable student to experience substantial
interference with his or her academic performance.
4) Causing a reasonable student to experience substantial
interference with his or her ability to participate in
or benefit from the services, activities, or
privileges provided by a school. (EC � 48900(r)(1))
Current law defines "electronic act" as the creation and
transmission, originated on or off the schoolsite, by means
of an electronic device, including but not limited to a
telephone, wireless telephone, or other wireless
communication device, computer, or pager, of a
communication, including but not limited to any of the
following:
1) A message, text, sounds, or image.
2) A post on a social network website including, but not
limited to:
a) Posting to or creating a burn page, as
defined, created for the purpose of having one or
more of the effects listed above.
b) Creating a credible impersonation of another
actual student, as defined, for the purpose of
having one or more of the effects listed above.
c) Creating a false profile, as defined, for
the purpose of having one or more of the effects
listed above. (EC � 48900(r)(2))
Current law prohibits a student from being suspended or
expelled unless the act is related to a school activity or
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school attendance. Schools are specifically authorized to
suspend or expel a student for acts that are related to a
school activity or school attendance that occur at any
time, including but not limited to:
1) While on school grounds.
2) While going to or coming from school.
3) During the lunch period whether on or off the campus.
4) During, or while going to or coming from, a
school-sponsored activity.
(EC � 48900(s))
ANALYSIS
This bill modifies the definition of bullying via an
electronic act, for the purposes of student suspension and
expulsion, from the "creation and transmission" of a
communication to the "creation or transmission" of a
communication by means of an electronic device.
STAFF COMMENTS
1) Currently authorized to suspend or recommend for
expulsion . Current law authorizes schools to suspend,
or recommend for expulsion, a student
who has been found to have engaged in an act of
bullying, as defined. Current law prohibits a student
from being suspended or expelled unless the act is
related to a school activity or school attendance;
however, schools are specifically authorized to
suspend or expel a student for acts that are related
to a school activity or school attendance that occur
at any time.
Prior to suspending a student for bullying, schools
must first determine that the victim is in fear of
harm, the act has a substantially detrimental effect
on the victim's health, the act substantially
interferes with the victim's academic performance, or
the victim experiences substantial interference with
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his or her ability to participate in or benefit from
the services, activities, or privileges provided by a
school. Therefore, a student cannot be suspended or
recommended for expulsion unless the act disrupts a
school activity or attendance.
While the courts have ruled that suspension or
expulsion for cyberbullying is contingent on whether
an action causes a substantial disruption to school
activities, regardless of where the action took place
(see Comment #2), AB 256 (Garcia, Chapter 700, 2013)
clarified that where the communication was created and
transmitted does not matter. Concerns have been
raised that AB 256 may have inadvertently narrowed the
definition of bullying via an electronic act, by
defining "electronic act" as the creation and
transmission of a communication, which limits a
principal or superintendent's ability to suspend or
expel a student to only those incidences where a
student created and transmitted a communication via an
electronic device, and prevents a principal or
superintendent from suspending or recommending
expulsion if a student did not create the
communication but took part in transmitting it to
others. This bill changes "creation and transmission"
to "creation or transmission."
2) Case law . According to the Assembly Education
Committee analysis of prior legislation, 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, 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 can then 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).
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 student who
was the target of the video went to a counselor in
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tears, not wanting to attend class. Consequently, 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 or
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 website as causing a substantial
disruption to school activity.
3) Alternatives to out-of-school suspension . Current law
provides that suspension may be imposed only when
other means of correction fail to bring about proper
conduct. Current law requires suspension by the
principal to be preceded by an informal conference
between the principal, student and whenever
practicable, the teacher, supervisor or school
employee who referred the student to the principal
(unless an emergency situation exists). Current law
authorizes schools to consider various forms of other
corrective action, such as in-school suspension.
4) Related legislation . SB 840 (Lara) requires each
local educational agency to develop and implement a
policy against bullying that includes specific
components, such as a procedure for referring victims
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to counseling, mandatory training for school
employees, and documentation of all acts of bullying.
SB 840 is pending in the Senate Appropriations
Committee.
AB 420 (Dickinson) eliminates the option to suspend or
recommend for expulsion a student who disrupted school
activities or otherwise willfully defied the authority
of school officials, and instead authorizes schools to
suspend a student in grades 6-12 who has substantially
disrupted school activities or substantially prevented
instruction from occurring. AB 420 is pending on the
Senate Floor.
AB 1455 (Campos) authorizes the superintendent of a school
district, the principal of a school, or the
principal's designee to refer a victim of, witness to,
or other student affected by an act of bullying,
committed on or after January 1, 2015, to the school
counselor, school psychologist, social worker, child
welfare attendance personnel, school nurse, or other
school support service personnel for case management,
counseling, and participation in a restorative justice
program. AB 1455 is pending referral in the Senate.
AB 1993 (Fox) requires schools to provide training on
the topic of bullying, as specified, to every teacher
employed by the school district on or after July 1,
2015. AB 1993 is pending in the Assembly
Appropriations Committee.
5) Prior legislation . AB 1216 (Campos, 2013) would have
added to the list of acts for which a student may be
suspended or recommended for expulsion, willful
injury, intimidation, interference with, oppression or
threaten any other student because of actual or
perceived characteristics of the victim of familial
status, socio-economic status or weight. AB 1216 was
never heard.
SB 231 (Correa, 2013) would have established the California
Bullying Prevention Clearinghouse and required the
Superintendent of Public Instruction to convene an
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advisory council to provide technical assistance on
best practices that reduce bullying. SB 231 was held
on the Assembly Appropriations Committee's suspense
file.
AB 2242 (Dickinson, 2012) would have prohibited students
who are found to have disrupted school activities or
otherwise willfully defied the authority of school
officials from being subject to extended suspension,
or recommended for expulsion. AB 2242 was vetoed by
the Governor, whose veto message read:
I cannot support limiting the authority of local
school leaders, especially at a time when budget
cuts have greatly increased class sizes and
reduced the number of school personnel. It is
important that teachers and school officials
retain broad discretion to manage and set the
tone in the classroom.
The principle of subsidiarity calls for greater,
not less, deference to our elected school boards
which are directly accountable to the citizenry.
SB 1235 (Steinberg, 2012) would have encouraged
schools that have suspended more than 25% of the
school's enrollment or more than 25% of any
numerically significant racial or ethnic subgroup of
the school's enrollment in the prior school year to
implement, for at least three years, at least one
specified strategies to reduce the suspension rate or
disproportionality. SB 1235 was vetoed by the
Governor, whose veto message read:
This bill requires the Superintendent of Public
Instruction each year to compile a list of
schools which suspend too high a percentage of
their students and then invite districts that
have such schools to attend meetings to discuss
the problem.
My preference is to leave the matter of student
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suspension to local school boards and the
citizens who elect them.
I understand the author's concern, which is why I
have signed a number of other bills aimed at
reducing the number of student suspensions and
expulsions.
SUPPORT
American Federation of State, County and Municipal
Employees
California Teachers Association
OPPOSITION
American Civil Liberties Union
Public Counsel