Tuesday, January 17, 2017

Cyber Sexual Bullying: One More Reason To Boot Your Kids Out Of School

By Michelle Ball, California Education Attorney for Students since 1995
Cyber sexual bullying is now a suspendable or expellable offense in California schools.  Bullying already is an expellable offense, but apparently the legislature did not think "bullying" alone was broad enough.  As such, the legislature chose to add a new offense to the ever growing list of things a student may do wrong.  Now students may not bully and also use or reference sexually explicit electronic communications, which are covered by this new subcategory of bullying.

California Education Code §48900(r)(2)(iii) states:

"...“cyber sexual bullying” means the dissemination of, or the solicitation or incitement to disseminate, a photograph or other visual recording by a pupil to another pupil or to school personnel by means of an electronic act that has or can be reasonably predicted to have one or more of the effects described in [the Bullying section]. A photograph or other visual recording, as described above, shall include the depiction of a nude, semi-nude, or sexually explicit photograph or other visual recording of a minor where the minor is identifiable from the photograph, visual recording, or other electronic act.
(II) For purposes of this clause, “cyber sexual bullying” does not include a depiction, portrayal, or image that has any serious literary, artistic, educational, political, or scientific value or that involves athletic events or school-sanctioned activities." [bracketed material added]

An act of cyber sexual bullying must be "bullying" and also sexual in nature as defined above.  

It is interesting that "incitement to disseminate" is an offense covered under this subsection.  This could mean a student who did not send or take an improper picture, but rather only "incited" someone to send or take it, could also potentially be guilty of an offense.  This sexual bullying can involve "sexting," where nude photographs of students are shared, presumably by others who are not authorized to share them.  

When Governor Brown signed this into law, a press release explained:

"Sexual bullying is a form of bullying commonly facing teenagers.  It is a behavior that can include harassing an individual or others through comments and actions that are sexual in nature. Furthermore, sexual bullying can occur in person or online.  The act of sexting, where sexual, nude or semi-nude images are exchanged electronically, has become a recent occurrence in the lives of young people, and can be a major form of sexual bullying, or cyber sexual bullying.  Approximately 20 percent of teenage boys and girls have sent a sext message, according to the American Academy of Pediatrics." 

In recent years, the long arm of the schools frequently attempts to reach acts outside school grounds, activities and hours, particularly with bullying.  It used to be that acts on the weekend stayed on the weekend.  However, if matters come into the school and cause a bullying environment, even if not intended to do so, it is possible the schools may try to punish the offending student(s) regardless of where the offending act(s) occurred.  Students beware.


Michelle Ball
Education Law Attorney 

717 K Street, Suite 228 
Sacramento, CA 95814 
Phone: 916-444-9064 
Fax: 916-444-1209
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Please see my disclaimer on the bottom of my blog page. This is legal information, not legal advice and no attorney-client relationship is formed by this posting, etc. etc.!  This blog may not be reproduced without permission from the author and proper attribution of authorship.

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