HB 45-ELECTRONIC BULLYING IN SCHOOLS  8:06:07 AM CHAIR GATTIS announced that the first order of business would be HOUSE BILL NO. 45, "An Act relating to harassment, intimidation, or bullying by students attending a public school in the state." 8:06:21 AM REPRESENTATIVE MIA COSTELLO, Alaska State Legislature, as a joint prime sponsor of HB 45, reiterated that this would add language to a definition portion of statute [language related to electronic communication]. 8:07:14 AM SARAH PAGE, Staff, Representative Mia Costello, Alaska State Legislature, on behalf of one of the joint sponsors of HB 45, Representative Mia Costello, explained that this bill would change the definition in statute related to bullying, by inserting "electronic" and "communication" into the types of communicative acts that could be considered as bullying, harassment, or intimidation. This bill specifically addresses bullying in public schools in Alaska. 8:08:28 AM REPRESENTATIVE SEATON referred to page 2 of the memo from Legislative Legal Services dated December 31, 2012 from Jean M. Mischel, which read: An "intentional written, oral, or physical act" does not, in my opinion, exclude threats spoken through a telephone or voice messaging system. REPRESENTATIVE SEATON asked whether the Department of Law agrees with the legislature's legal services in terms of the extent of the current law. REBECCA HATTAN, Assistant Attorney General, Labor and State Affairs Section, Department of Law, answered that she has read Ms. Mischel's memo regarding HB 45. She said Ms. Mischel makes an excellent point that she largely agrees with. This bill would provide additional clarity that might make moot a legal argument that the definition doesn't extend to electronic acts which might not have been contemplated by the legislature when the enabling legislation was passed. She offered her belief that passage of HB 45 would make that argument moot. 8:10:10 AM REPRESENTATIVE SADDLER asked about the specific distinction between oral communication and physical act. He referred to page 1, line 11 and asked for further clarification on the effect of eliminating "communication", so the definition would then read, "means an intentional written, electronic, oral or physical act, ...." He further asked whether "communication" is essential to this language. MS. HATTAN deferred to the sponsor to clarify, but said it seems that the language captures the ways students communicate with each other continually evolves and this language recognizes new forms of communication as it develops electronically. 8:11:28 AM REPRESENTATIVE P. WILSON inquired about the scope of bullying, for example, whether the activity needs to happen during school or if evening or electronic communication can also be considered. MS. HATTAN acknowledged the importance of this question. She characterized this as a complex question that has been the subject of litigation in federal and state courts for many decades. A 1969 U.S. Supreme Court case, Tinker vs. Des Moines, is still used to answer that question. She said there is a famous quote in which the high court agreed that students' free rights should be protected and said, "Students don't shed their constitutional rights at the school house gates." She said that First Amendment rights exist; however, as a counterweight, schools have a strong interest in promoting order and instilling certain values in their students. MS. HATTAN stated that a more recent U.S. Supreme Court case, Morse v. Frederick, 2007 - the Juneau "Bong Hits for Jesus" case asked a similar question. The speech at issue in that case did not take place on school grounds but occurred during a school- sponsored event held during school hours. The court held that enough of a connection existed between the speech and the school day that punishment was considered legitimate. The Morse Case has been used in several cases throughout the U.S. related to cyberbullying. These cases use the test in the Morse case to answer the very question, "How tangential is this connection or how substantial is this connection between the school day and the speech." For example, a student may be so devastated by comments made on Facebook or with other communication devices that the student feels threatened by his/her peers; however, these rules aren't clearly defined. She said that the cases have been factually specific, noting that the Alaska Supreme Court has yet to weigh in. 8:15:05 AM REPRESENTATIVE LEDOUX asked how important the school hours were in Morse v. Frederick. MS. HATTAN answered that it was relevant. The most important consideration was the value or lack thereof since people weren't able to ascertain what the student tried to say with a strange slogan unfurled on a banner ["Bong Hits for Jesus"]. In terms of upholding the school district's right to mete out punishment, the factors cited were that it took place during school hours at a school-sponsored event. However, some of the more recent U.S. Supreme Court decisions used the Morse v. Frederick ruling to uphold school punishments that happened at home outside of school hours. 8:16:14 AM CHAIR GATTIS reported having attended a forum where students brought this as a topic, and while some were not supportive of HB 45, others remarked that they were being bullied. Although the teenagers didn't want to give up any First Amendment rights, these students also agreed that something needed to be done since bullying harmed other students. 8:17:37 AM REPRESENTATIVE SADDLER said it is important to note that this bill does not make "cyberbullying" a crime but the offense would be reportable to a school official. He asked how often any type of bullying is reported. MS. HATTAN didn't know, but the deferred to the department. REPRESENTATIVE P. WILSON suggested that schools may need to decide how to handle these situations at a local level based on the facts, but this bill will lead to schools taking action. CHAIR GATTIS commented that HB 45 brings us forward to the world of cyberspace. 8:19:33 AM CHAIR GATTIS, after first determining no one else wished to testify, closed public testimony on HB 45. 8:19:39 AM REPRESENTATIVE SEATON referred to page 3, item 3, of the aforementioned Legislative Legal memo, which read, "Whether accomplished through electronic or other methods, bullying is not described as a specific crime under our Model Penal Code structure;...." He said this brings it back to the nexus of school enforcement policies. He expressed concern that if it isn't clear that school enforcement policies can control cyberbullying that students could be charged with harassment under the penal code. He preferred to have this matter handled by the schools rather than to have students face criminal charges. He stated support for the bill. 8:21:04 AM REPRESENTATIVE SADDLER stated the sponsor statement indicates HB 45 will require school districts to create a policy against electronic bullying, commonly known as cyberbullying. He said he did not see this requirement in the bill and asked for further clarification on what is being recommended. 8:21:27 AM REPRESENTATIVE COSTELLO clarified that the bill further defines the statute by adding "electronic" as a means of harassment, intimidation or bullying. If school districts currently have policies on bullying, it would require the districts to recognize electronic or cyberbullying. These policies are school district decisions, but the statute indicates the need to recognize electronic communication. She related that she introduced the bill on behalf of a high school student and the Dimond High School student government classes have passed a resolution supporting HB 45. These high school students recognize that the school environment includes electronic communications and it helps to have a policy. 8:23:22 AM REPRESENTATIVE SADDLER acknowledged the current statutory language. 8:23:41 AM REPRESENTATIVE SADDLER moved to report HB 45 out of committee with individual recommendations and the accompanying fiscal note. There being no objection, HB 45 was reported from the House Education Standing Committee.