More Related Content More from ECCSymposium (20) 2. Notes:
Overview
Bullying has increasingly become a problem that many students face at
school. In today’s technological age, students increasingly
communicate and socialize by way of new technologies and electronic
communications. Students often times use these new technologies
and electronic communications to bully one another. As a result,
schools have struggled to maintain a balance between maintaining
order, encouraging student speech and expression, and maneuvering
the discipline and related legal issues that arise in this context. This
presentation covers the wide range of issues that school districts face
under these circumstances, including the proper limits of “E‐Discipline”
for students who use electronic communications, originating on and off
of school grounds, to bully other students. This session will assist
school officials in understanding the complexities and risks of school
action in these areas. In this context, we will cover:
• National and California Spotlight on Bullying
• 2012: Assembly Bill 9 and Assembly Bill 1156
• Assembly Bill 256
• First Amendment and Student Speech
• Discipline & Bullying: Jurisdiction and Violations
• Wynar v. Douglas County School District
• Bullying Action Plan
Through a discussion on these subjects, this session will make clear the
various options, required and discretionary, relative to addressing
bullying in your district.
National and California Spotlight on Bullying
From news stories, to politicians, to a high profile documentary, an
ever‐increasing spotlight shines on the issue of student bullying. While
some in the education community are familiar with the several tragic
stories involving acts of violence and the loss of life noted as a result of
bullying activities, there is still some uncertainty as to exactly how
widespread bullying behaviors are in public schools.
Some recent studies summarized by the National School Boards
Association suggest that actual bullying data relative to victims is hard
to pinpoint, and bullying may not be as common as some have
suggested, with a broad range of approximately 15‐40% of students
reporting having been victims of “bullying” at some point during their
time in school, depending on the source of the information and the
definition of bullying. For example:
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3. Notes:
Legal Citations:
Ed. Code, §§ 32261, 48900
•
A 2011 study release by the Center for Disease Control and
Prevention found that during a 12 month period in
Massachusetts 27% of middle school students and 16% of high
school students reported being the victims of bullying;
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•
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A 2010 study by the Josephson Institute of Ethics, a seller of a
bullying prevention program, found that out of a group of
43,000 students, 43% of respondents said they had been
bullied, while 50% reported having seen someone bullied, in a
year’s time;
Ongoing research that has been conducted by the same
individuals since 2004 shows that among differing student
populations, anywhere from 18% to 40% of students have been
victims of bullying through electronic means (also knows as
“cyberbullying”); and
A long‐term study of anonymous student data collected by the
Olweus program indicates that 16.8% of students grades 3‐12
reported having been bullied 2‐3 times or more per month.
While the statistics on the extent of bullying vary, perhaps in response
to the most high profile cases, states have increasingly begun to pass
legislation in this area, with thirty‐nine (39) states either amending or
enacting anti‐bullying legislation between 2008 and June 2011. The
federal government has also taken significant action in the past several
years to address bullying, with the federal Department of Education, in
coordination with several other agencies, attempting to find ways to
resolve the problem of bullying while seeking to provide tools to
accomplish this task at the local level.
California is one of the states whose anti‐bullying statutes were passed
and further amended during this time period. In 2008, the Legislature
purported to address the unique discipline problems raised by bullying
issues, and particularly those related to cyberbullying, through
Assembly Bill (“AB”) 86, which became effective January 1, 2009.
According to the legislative history for the bill, it was intended to “give
school officials grounds to suspend a pupil or recommend a pupil for
expulsion for bullying, including, but not limited to, bullying by
electronic act.” In so doing, AB 86 amended the Education Code to
specify that bullying could be by means of an “electronic act,” defined
as the “transmission of a communication, including, but not limited to,
a message, text, sound, or image by means of a electronic device, . . .
[such as] a telephone, wireless telephone, or other wireless
communication, device, computer, or pager.” AB 86 also amended
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4. Notes:
Education Code section 48900 to include as a basis for student
discipline, bullying by an electronic act.
However, AB 86 had several shortcomings:
• The legislation did not amend the jurisdictional language in
Education Code section 48900 to deal with the broadened
electronic scope;
• State Senate comments to the legislation stated: “It is unclear
whether an administrator will be able to determine whether a
specific act of bullying by means of an electronic act actually
occurred on school grounds or not, and this may create
difficulty in implementing these provisions”; and
• Further, those in opposition to the bill asserted “that the
suspension/expulsion provision relating to bullying raises
potential First Amendment issues that could later be challenged
in the courts.”
Thus, in essence, AB 86 made express that students’ electronic acts
may subject them to discipline assuming that there was a violation of
Education Code section 48900 et seq. This is consistent with the
implicit interpretation of the law and general application by school
districts prior to its implementation (for example, whether sexual
harassment takes place verbally, by a handwritten communication, or
through an email, it is still sexual harassment). Yet, AB 86 did not
resolve the jurisdictional and free speech issues at the heart of the
electronic act disciplinary challenge for school administrators.
Finally, regardless of AB 86’s shortcomings from a discipline
perspective, unlike legislation effective this school year, there were no
requirements or obligations imposed in that legislation to address
bullying in a more general or comprehensive fashion outside of
discipline.
Roadmap Preview
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Required bullying complaint process and the UCP (AB 9)
Disciplinary framework and the Education Code
District created overarching bullying policies
Alternatives for complaint process and consequences based
upon the nature and context of the bullying allegations
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5. Notes:
Legal Citations:
Ed. Code, §§ 234, 234.1, 234.2, 234.3,
234.5
2012: Assembly Bill 9 and Assembly Bill 1156
Assembly Bill 9
Passed in 2011, and effective July 1, 2012, AB 9 modified existing law
related to bullying with the goal of reducing student bullying with a
policy based focus. The California Department of Education (“CDE”) is
charged with assessing school district compliance with the law.
• Prohibition
As of July 1, 2012, school districts must have adopted a policy
prohibiting:
discrimination, harassment, intimidation, and bullying
based on the actual or perceived characteristics described
in section 422.55 of the Penal Code and Section 220, and
disability, gender, gender identity, gender expression,
nationality, race or ethnicity, religion, sexual orientation, or
association with a person or group with one or more of
these actual or perceived characteristics.
• Scope
The policy adopted must include the statement that it “applies to all
acts related to school activity or school attendance occurring within a
school under the jurisdiction of the superintendent of the school
district.”
• Complaint Process
The policy must also address “receiving and investigating complaints of
discrimination, harassment, intimidation and bullying based on actual
or perceived characteristics” (noted above).
The required complaint process must cover:
• The requirement that school personnel who witness such acts
take immediate steps to intervene when safe to do so;
• A timeline to investigate and resolve complaints; and
• An appeal process for the complainant, if complainant disagrees
with the complaint resolution.
• Obligation to Publicize
The policy adopted pursuant to AB 9 must be publicized and describe
how to file a complaint, and be posted in offices and schools, including
staff lounges and student government meeting rooms. The most
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6.
Legal Citations:
Ed. Code, §§ 32261, 32282, 32283, 46600,
48900(r)
Comment:
Note that section 48900(r), although in
part relying on conduct prohibited under
sections 48900.2, 48900.3, and 48900.4
(applicable only to 4‐12 graders), is
broader than these provisions, and may in
some instance conceivably call for
discipline for bullying of students below
grade 4.
conservative approach for meeting this requirement would be to post
copies of the entire policy adopted related to bullying, along with a
step‐by‐step description of the complaint process. More simply, this
requirement can also likely be met by districts modifying their existing
nondiscrimination and harassment postings to include a summary of
the district’s bullying “policy.”
• Anti‐Retaliation, Confidentiality and Point Person
Finally, the policy must ensure complainants are protected from
retaliation, complainant identities remain confidential as appropriate,
and that there is a district employee identified for ensuring
compliance.
Assembly Bill 1156
AB 1156 implemented companion requirements to AB 9, dealing with
the discipline of bullying and establishing basic definitions for purposes
of same. AB 1156 also took effect July 1, 2012.
• Bullying
Most importantly, AB 1156 amends Education Code section 48900,
subdivision (r), to define “bullying” as:
severe or pervasive physical or verbal act or conduct,
including communications made in writing or by means of
an electronic act, and including one or more acts
committed by a pupil or group of pupils as defined in
Section 48900.2, 48900.3, or 48900.4, directed toward one
or more pupils that has or can be reasonably predicted to
have the effect of one or more of the following:
(A) Placing a reasonable pupil or pupils in fear of harm
to that pupil’s or those pupils’ person or property;
(B) Causing a reasonable pupil to experience a
substantially detrimental effect on his or her physical or
mental health;
(C) Causing a reasonable pupil to experience
substantial interference with his or her academic
performance; or
(D) Causing a reasonable pupil to experience
substantial interference with his or her ability to participate
in or benefit from the services, activities, or privileges
provided by a school.
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7. Notes:
• Reasonable Pupil
For purposes of the definition of a victim of bullying and the act of
bullying under section 48900, “reasonable pupil” is defined to mean a:
pupil, including, but not limited to, an exceptional needs
pupil, who exercises average care, skill, and judgment in
conduct for a person of his or her age, or for a person of his
or her age with his or her exceptional needs.
• Electronic Act
“Electronic act” is defined to mean:
the transmission of a communication, including, but not
limited to, a message, text, sound, or image, or a post on a
social network Internet Web site, by means of an electronic
device, including, but not limited to, a telephone, wireless
telephone or other wireless communication device,
computer, or pager.
Effective January 1, 2013, AB 1732 further amended Education
Code section 48900 to modify the definition of “electronic act.”
This change made it explicit that “electronic act” includes the
social network activity of: (1) creating a credible impersonation
of a student with ill intent; (2) creating a false student profile
with ill intent; or (3) creating or posting to a “burn page.”
AB 1732 also provided clarification of the meaning of “pervasive”
under the statute: “an electronic act shall not constitute
pervasive conduct solely on the basis that it has been transmitted
on the Internet or is currently posted on the Internet.”
• Priority Consideration for Transfer
AB 1156 also established a “priority consideration” for interdistrict
transfers for students who are/were victims of bullying as now defined.
(See Ed. Code, § 46600 et seq.)
• School Site Safety Plans
Finally, AB 1156 encouraged districts to review their comprehensive
safety plan for the inclusion of policies and procedures aimed at the
prevention of bullying.
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8. Notes:
2013: Assembly Bill 256
Education Code section 48900, subdivision (s), governs jurisdiction to
impose discipline in California schools. Through December 31, 2013,
that provision provided:
“A pupil may be suspended or expelled for acts that are
enumerated in this section and related to school activity or
attendance that occur at any time, including, but not limited
to, any of the following:
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.”
Effective January 1, 2014, AB 256 amended section 48900, subdivision
(s).
See Lozano Smith CNB No. 77 (Oct. 2013)
(Provided at workshop session)
First Amendment and Student Speech
Even if a school district has jurisdiction to discipline a student for his or
her online expressive activities, would such discipline violate the
student’s free speech or due process rights? If so, then what? A
successful lawsuit by the student could yield monetary damages
against the school district and possible personal liability against school
officials. Many cases result in settlements involving financial payouts
to student plaintiffs in advance of a judicial decision by the courts.
• Legal Basis for Student Free Speech Rights
There are various sources of free speech rights for California students.
Such legal authority includes:
• First Amendment of the United States Constitution;
• California Constitution, article 1, section 2;
• California Education Code section 48907, subdivision (a); and
• California Education Code section 48950.
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9. Notes:
Subdivision (a) of Education Code section 48907 provides:
Students of the public schools shall have the right to
exercise freedom of speech . . . except that expression
shall be prohibited which is obscene, libelous, or
slanderous. Also prohibited shall be material which so
incites students as to create a clear and present danger of
the commission of unlawful acts on school premises or the
violation of lawful school regulations, or the substantial
disruption of the orderly operation of the school.
Education Code section 48950 provides:
School districts operating one or more high schools . . .
Shall not make or enforce any rule subjecting any high
school pupil to disciplinary sanctions solely on the basis of
conduct that is speech or other communication that, when
engaged in outside of the campus, is protected from
governmental restriction by the . . . California Constitution.
(Ed. Code, § 48950, subd. (a).)
Nothing in this section prohibits the imposition of
discipline for harassment, threats, or intimidation, unless
constitutionally protected. (Id., § 48950, subd. (d).)
Nothing in this section shall be construed to supersede, or
otherwise limit or modify, the provisions of Section 48907.
(Id., § 48950, subd. (e).)
• Tinker and the General Rule for Student Free Speech Rights
“It can hardly be argued that . . . students . . . shed their constitutional
rights of speech or expression at the schoolhouse gate.” (Tinker v. Des
Moines Independent Community Sch. Dist. (1969) 393 U.S. 503, 506.)
•
Exceptions to the General Rule
The general rule for student free speech rights has a number of
exceptions that the United States Supreme Court has articulated
through the years. Among them are the following:
• The Tinker substantial disruption or forecast of substantial
disruption exception;
• The Fraser, lewd, vulgar, obscene or plainly offensive speech
exception;
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11. Notes:
Comment: See Lozano Smith Client
Newsbrief No. 59 (September 2013)
What about student due process rights?
Bullying Discipline: Jurisdiction and Violation
•
Jurisdiction: Education Code section 48900, subdivision (s)
In general, a school district may discipline students for off‐campus
conduct where the conduct poses a threat or danger to the safety of
other students, staff or school property, or will disrupt the educational
program of the school, provided the district is able to document the
conduct that is related to school activity or attendance. On the other
hand, where school districts have not been able to document facts that
show the conduct is related to school activity or school attendance,
and in particular fails to show disruption or a reasonable forecast of
disruption affecting the educational environment, the courts have not
upheld student discipline. Examples of off‐campus student conduct
that affects school activity or school attendance include conduct that
occurs on school grounds but outside the classroom; conduct while
going to or from school; conduct occurring during the lunch period,
whether on or off campus; and conduct during or while going to or
from a school‐sponsored activity.
See Lozano Smith Bullying Discipline Worksheet
(Provided at workshop session)
Wynar v. Douglas County School District
In Wynar v. Douglas County School District (9th Cir. 2013) 728 F.3d
1062, the Ninth Circuit Court of Appeals held that a student’s violent
and threatening off‐campus, electronic speech was not protected by
the First Amendment of the United States Constitution and may
constitute a basis for student discipline. This case is particularly
noteworthy in that it is the first opinion issued by the Ninth Circuit
addressing whether a school district may discipline students for off‐
campus, electronic communications. This case also establishes that the
Tinker standard applies when schools are determining whether they
can discipline a student for off‐campus electronic communications.
Notably, while Wynar provides needed insight regarding whether and
when school officials can discipline a student for off‐campus electronic
communications, Wynar does not address unique issues under
California’s Education Code relative to due process, student free
speech rights or California’s cyberbullying discipline provisions.
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12. Notes:
Bullying Prevention Action Plan
•
If in receipt of or on notice of a complaint of bullying:
o Conduct an immediate investigation into the bullying
allegations;
o As is appropriate, collect and obtain documentation
regarding the alleged bullying incident or incidents;
o Collect student witness statements regarding the
alleged bullying incident or incidents;
o Based upon the results of the investigation, make all
reasonable efforts to resolve disputes between students
regarding bullying;
o Based upon the results of the investigation, determine
whether student discipline is appropriate under
Education Code section 48900(r) or another applicable
Education Code provision (see the Bullying Discipline
Worksheet); and
o Whether or not discipline is appropriate, determine
whether other non‐disciplinary alternatives should be
utilized to address the alleged bullying and/or dispute
between students regarding alleged bullying (see list of
alternative measures below).
•
Whether it is determined that discipline is or is not appropriate,
consider alternative measures to address the subject conduct or
dispute between students, including but not limited to:
o Coordinate and/or schedule a conflict resolution
program and/or meetings between the student victim(s)
and perpetrating student(s) to discuss the subject
behavior and its actual and potential consequences, and
to resolve the students’ dispute;
o Meet with the bullying student(s) to discuss the subject
behavior and its actual and potential consequences;
o Verbally or in person discuss with the bullying student’s
parent or guardian the subject behavior and its actual
and potential consequences;
o Upon request by the bullying or victim students’ parent
or guardian, consider facilitating contact information
between the bullying and victim students’ parent or
guardian for them to (outside of the school’s
involvement) discuss the situation and resolve the
dispute;
o Provide access to counselors or other support services
to student victim(s);
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