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Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local school counsel or an attorney at Lozano Smith. If you are interested in having other in‐service programs on school law presented in your school district, please contact [email protected] or call (559) 431‐5600.

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Knowing Your Options:

A Roadmap of Alternatives for Addressing Bullying Complaints

ACSAEvery Child Counts Symposium

January 15, 2014Monterey, California

Presented by:Sloan Simmons & Aimee Perry

For more information, please visit our website at www.lozanosmith.com or contact Sloan R. Simmons at [email protected] or Aimee Perry at [email protected].

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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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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;

• 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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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

• 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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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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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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• 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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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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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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• The Kuhlmeier school sponsored speech exception; • The true threat exception; • The Morse promotion of drug‐use or illegal activities

exception; • The Tinker infringing the rights of other students exception;

and • The Morse/Tinker to non‐true threats of harm to student

safety. • The Tinker Substantial Disruption Standard and Exception

Tinker involved what the courts consider to be pure political speech by the students’ wearing of black armbands in protest of the Vietnam War. The regulation of the students’ speech in Tinker was unlawful because school officials did not have any evidence that the passive action of wearing armbands caused or would cause material and substantial disruption to the school environment. Under the Tinker standard, schools may discipline a student or otherwise regulate the student’s speech if it causes, or school officials can reasonably forecast that it will cause, actual material and substantial disruption to the educational environment. However, schools may not regulate a student’s speech or expression based on “undifferentiated fear or apprehension of disturbance” or “the mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” Thus, the main focus of Tinker is on the results of the speech, not the content of the speech. The Tinker standard is the standard most often applied by courts to free speech cases involving electronic act‐speech or conduct by students. This is so because the standard and exception is triggered by the impact of speech on the school environment and campus, and thus makes for a more seamless application to speech through electronic acts that may originate initially off of school grounds and not through school technology.

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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


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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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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o Provide access to counselors or other support services to perpetrating student(s); and/or

o Attendance by alleged student bullies of training sessions regarding the harms of bullying.

• If the alleged bullying is outside of the school’s jurisdiction to

impose discipline, consider notifying the student victim’s parent or guardian of their option of contacting law enforcement.

• Remember, whether or not within the school’s jurisdiction to

discipline, the non‐disciplinary alternative measures discussed above to address bullying conduct or bullying related disputes may be utilized by the school.

• If any act or incident of bullying appears to present an

immediate, imminent and/or serious threat, contact SRO/law enforcement.

See Lozano Smith Bullying Prevention Action Plan


Summary: Your Roadmap Options