BILL ANALYSIS �
SB 185
Page 1
Date of Hearing: June 12, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
SB 185 (Walters) - As Amended: May 15, 2013
SENATE VOTE : 34-0
SUBJECT : Instructional materials: digital format
SUMMARY : This bill makes changes to the requirements for the
adoption of instructional materials by school districts and
county offices of education. Specifically, this bill :
1)Permits school districts and county offices of education to
negotiate the price of standards-aligned instructional
materials and supplemental materials in either a printed or
digital format.
2)Requires publishers to offer digital and printed instructional
materials in an unbundled format to allow a school district or
county office of education to purchase each component of the
instructional program separately.
3)Specifies that a school district may use instructional
materials in digital format that were purchased by the school
district to create a district-wide online digital database for
classroom use consistent with an online security system that
is mutually agreed on by the publisher and the school
district.
EXISTING LAW
1)Requires, in the California Constitution, the State Board of
Education (SBE) to adopt textbooks for use in grades 1-8,
inclusive, throughout the state to be furnished without costs
and that the instructional materials it adopts meet specified
criteria.
2)Prohibits the SBE from adopting instructional materials, or
from following the procedures for the adoption of
instructional materials, until July 1, 2015.
SB 185
Page 2
3)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.
4)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.
5)Authorizes school districts to include relevant
technology-based materials when adopting instructional
materials if the materials are both available and comparable
to other instructional materials.
6)Specifies 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.
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. These 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 a publisher or manufacturer to furnish the
instructional materials to all school districts and county
offices of education at a price that does not exceed the
lowest price at which the publisher offers those instructional
materials for adoption or sale to any state or school district
in the United States and reduce the price to California school
SB 185
Page 3
districts and county offices of education if the price is
reduced in another state or school district.
9)Requires a publisher or manufacturer to furnish those
instructional materials free of charge to all county offices
of education, district boards, elementary schools, middle
schools, or high schools to the same extent as is received
free of charge by any other state or school district in the
United States. These provisions of code and regulation are
commonly referred to as the "most favored nation" clause.
10)Requires a publisher or manufacturer to provide the state
with an electronic version of the instructional material for
the purpose of producing instructional materials for pupils
that are Deaf, hard of hearing, blind, or visually impaired,
if those instructional materials are not already available for
these pupils by the publisher or manufacturer.
FISCAL EFFECT : This bill is keyed as non-fiscal by Legislative
Counsel.
COMMENTS : Pursuant to its constitutional duty, the SBE adopts
instructional materials for use in grades K-8 within
California's public schools using a statutorily and regulatory
dictated process. School districts and county offices of
education are permitted to adopt instructional materials not
adopted by the SBE so long as the district or county office
reviews the materials to ensure alignment with the SBE adopted
academic content standards.
Price Negotiation: This bill permits a school district or county
office of education to negotiate the price of standards-aligned
instructional materials and supplemental materials in either a
printed or digital format. Even if a school district or county
office of education purchases instructional materials adopted by
the SBE, districts and county offices purchase these
instructional materials directly from the publishers. The SBE
adopts the price of materials at the time of adoption of the
instructional materials and maintains an online price list of
adopted instructional materials for K-8. Prices are fixed for a
two-year period and may be adjusted biennially.
Currently, every school district and county office of education
pays the same price for K-8 instructional materials that are
adopted by the SBE. This bill would make the price determined
SB 185
Page 4
by the SBE the ceiling, and allow districts to negotiate a lower
price. The committee may wish to consider whether this could
lead to situations where some districts pay more than others for
the same instructional materials, thereby disrupting the
currently level playing field.
Despite the language in this bill that read "notwithstanding
paragraph (1) of subdivision (a) of Section 60061" there remains
confusion about how these provisions of law will be reconciled.
Therefore, the committee recommends amendments to delete Section
1 of this bill and instead amend section 60061 of the Education
Code to permit publishers and school districts to negotiate a
lower price, so long as no price is higher than that offered in
another state in or territory of the United States. Nothing in
the proposed amendments or existing law would prevent multiple
districts to join together to negotiate with publishers in order
to improve their bargaining power as to be similarly situated to
large districts.
Unbundled components : This bill requires 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 California Department of Education
(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.
Digital database : This bill permits a school district that has
purchased instructional materials in digital format to create a
district-wide online digital database for classroom use
consistent with an online security system that is mutually
agreed on by the publisher and the school district. 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, this provision is not necessary to permit
the school district from taking these actions, but is instead
aimed at encouraging the publishers and manufacturers to agree
to such a system. The committee may wish to consider whether
this language may be construed to allow unlimited use and
SB 185
Page 5
reproduction of instructional content, without compensation to
the publishers, authors, or third-party contributors.
Related legislation . AB 133 (Hagman) requires a publisher
submitting printed instructional material for adoption by the
SBE or the governing board of a school district to ensure that
the printed instructional material is also available in digital
format, during the entire term of the adoption. AB 133 was
passed out of the Assembly Education Committee by a vote of 7-0
and was passed by the Senate Education Committee on June 5 by a
vote of 9-0.
SB 682 (Lara) authorizes school districts to provide a digital
version of instructional materials to students that may be
downloaded onto an electronic device, and allows students to
keep the digital materials beyond the end of the school year.
This measure is currently pending in this committee.
Prior legislation . SB 1154 (Walters) of 2012, would have
required equivalent digital formats to be offered at the same or
lower cost than print materials, required publishers to offer
unbundled instructional materials, and authorized districts to
use digital materials for classroom use through a district-based
digital library. SB 1154 was vetoed by the Governor, whose veto
message read:
Providing on-line instructional materials
and coursework to pupils in California is an
educational goal that I very much share.
This bill, however, does not accomplish that
goal. Instead, it puts unrealistic
requirements on California's businesses that
will lead to increased costs of
instructional materials.
AB 1790 (Hagman) of 2012, would have required publishers to
ensure that instructional materials are offered in both print
and digital formats. AB 1790 was vetoed by the Governor, whose
veto message read:
This bill would require textbook publishers
to produce digital "equivalent" versions of
printed instructional materials submitted
for adoption by the State Board of Education
SB 185
Page 6
or by local school districts. This bill is
contingent on the enactment of Senate Bill
1154, which I vetoed. As a consequence,
this bill cannot become operative.
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, 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 1548 (Pavley) (Chapter 1717, Statutes of 2006) requires the
CDE to establish a pilot program of 12 schools to request
publishers make instructional materials in electronic multimedia
format available for purchase. Participating schools would be
required to provide to pupils the hardware necessary to use the
electronic materials, or print materials to pupils who do not
have access to the hardware. This program will be repealed on
January 1, 2016.
AB 1010 (Pavley) of 2004, would have required 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. 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 :
SB 185
Page 7
Support
Association of California School Administrators (Sponsor)
Junior Leagues of California
Los Angeles County Office of Education
San Francisco Unified School District
Opposition
Association of American Publishers, Inc.
Analysis Prepared by : Jill Rice / ED. / (916) 319-2087