Does California’s Anti-Bullying Legislation (AB 256) Encourage Schools to Go Too Far in Disciplining for Off-Campus Electronic Acts?

On October 10, 2013, the Governor signed AB 256 amending California’s pupil discipline law, Education Code section 48900, which identifies grounds for suspension and expulsion, including bullying. Although most agree that bullying among students is undesirable, some are concerned that California’s latest anti-bullying legislation, AB 256, has gone too far and may encourage schools to violate students’ off campus free speech rights. With this recent amendment, effective January 1, 2014, it is important that schools understand the limits of the law.

The basic definition of bullying has remained unchanged. Both before and after the amendment, Education Code section 48900(r) specified that a pupil engaged in an act of “bullying” could be suspended from school or recommended for expulsion. Under subsection (r)(1), bullying means “any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act. . . .” The statute also specifies that, in order to qualify for suspension or expulsion, the bullying must be “directed toward one or more pupils” and it must have or “be reasonably predicted to have” certain effects specified in Section 48900(r)(1)(A)-(D). In other words, the law cannot be used to discipline students who make negative or disparaging comments about school staff, administrators, or others who are not pupils. Additionally, bullying which does not, or is not reasonably predicted to, have certain effects cannot result in a suspension or expulsion under Section 48900(r).

The primary change is found in section 48900(r)(2)(A), which defines an electronic act as, “the creation and transmission [of a communication] originated on or off the schoolsite, by means of an electronic device. . . .” This section previously defined an electronic act as the transmission by means of an electronic device . . . .” and, notably, did not address the origin of the transmission (i.e., on or off the schoolsite.)

While the plain language of amended 48900(r) does not address free speech concerns, it is important to note that 48900(r) does not supersede, or seek to supersede, well-established Constitutional principles protecting free speech. In a legislative analysis prepared by Sophia Kwong Kim, ED, for the Assembly Third Reading on May 14, 2013, the purpose behind the amendment is characterized as follows:

[I]t is not the intent of this bill to add new responsibilities by requiring superintendents and principals to monitor students’ off-campus activities, or to increase suspensions and expulsions. [¶]

This bill is not inconsistent with how school administrators or the courts have interpreted state law. Students will not be suspended or expelled solely because of activities conducted away from the schoolsite; there must be some type of impact on students, as specified under the definition of bullying. 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 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 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). (Emphasis added.)

As the legislature clearly recognized, schools must continue to carefully analyze the facts of each case involving allegations of bullying and determine whether there are sufficient legal grounds to pursue discipline. That is, students may be subject to discipline for off-campus electronic misconduct if the misconduct is related to school activity or attendance and causes or is reasonably likely to cause a substantial disruption to school activity.

In practice, schools have successfully disciplined students for off campus electronic communications when schools have had legal jurisdiction under Tinker and other case law. Many schools have even provided parents and students with annual notice that students can be disciplined for off campus communications if the communications fall within the jurisdiction of the school. Ultimately, amended Section 48900(r) should not change how and when schools discipline students for off campus misconduct. However, the new law may serve as yet another reminder to students and parents that bullying against students simply will not be tolerated.

 

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