Restoring Justice with AB 1165

07.03.2023

On June 29, 2023, Governor Gavin Newsom signed Assembly Bill 1165 into law. This legislation amends Education Code section 48900.5, relating to suspension or expulsion. Specifically, AB 1165 adds the following provision, enumerated as Education section Code 48900.5(c):

For a pupil who has been suspended, or for whom other means of correction have been implemented pursuant to subdivision (b), for an incident of racist bullying, harassment, or intimidation, local educational agencies are encouraged to have both the victim and perpetrator engage in a restorative justice practice that is found to suit the needs of both the victim and the perpetrator. Local educational agencies are encouraged to regularly check on the victim of racist bullying, harassment, or intimidation to ensure that the victim is not in danger of suffering from long-lasting mental health issues. Local educational agencies are encouraged to require perpetrators to engage in culturally sensitive programs that promote racial justice and equity and combat racism and ignorance.

Existing law already permits a local educational agency (LEA) to utilize restorative justice programs as a means of correction to student misconduct in lieu of suspension. (Education Code section 48900.5(b)(6).) Existing law also permits principals or their designees to refer a victim, perpetrator, witness, or other student affected by an act of bullying to school support personnel for case management, counseling, and participation in a restorative justice program. (Education Code section 48900.9.)

What difference does AB 1165 make? It focuses on how LEAs should respond to race-based discrimination. There was massive support for the bill, and no opposition. Supporters pointed to the harmful effects of racist bullying on students. Most notably, many young people reported that they did not feel their schools adequately addressed incidents of racist bullying and harassment. Under certain circumstances, incidents of racist bullying, harassment, or intimidation, may impede student access to an equal education, thus resulting in violations of federal disability and civil rights laws. Compliance with AB 1165 supports existing goals LEAs have to ensure schools are safe for all students, no matter their race or ethnicity, by addressing the root issues of racist bullying through restorative justice programs and trauma-informed education practices.

Results of a 2021 report by the U.S. Government Accountability Office, Students’ Experiences with Bullying, Hate Speech, Hate Crimes, and Victimization in Schools, indicate that one in four of the 1.3 million students, age 12 to 18, who were bullied during the 2018-2019 school year, experienced bullying related to their race, national origin, religion, disability, gender, or sexual orientation. AB 1165 encourages LEAs to take proactive steps to ensure the victims and perpetrators of racist bullying receive the supports and interventions so schools remain safe, supportive places for everyone. Unfortunately, the ability to implement restorative justice practices that call for open discussion between perpetrator and victim will still depend on the consent of the parent/legal guardian for both students based on federal and state laws governing the privacy of pupil record information.

AB 1165 will go into effect on January 1, 2024, which is just six months before the deadline the California Department of Education (CDE) has to disseminate evidence-based best practices for restorative justice programs, generally, for LEAs to implement and improve campus culture and climate. (Education Code section 49055.) While CDE is required to develop and post best practices for restorative justice programs on their website before June 1, 2024, section 49055 of the Education Code does not mandate that the evidence-based best practices include content addressing race-based discrimination. For that reason, LEAs should still expect to review and update their existing restorative justice practices to conform with AB 1165.

What now?

• Remind personnel conducting investigations of student misconduct to document any instances of racist bullying, harassment, or intimidation.
• Ensure existing restorative justice practices utilized by your LEA can address race-based discrimination, and can support the dual needs of the victim and the perpetrator.
• Be mindful of the effects racist bullying, harassment, or intimidation may have on students’ social-emotional health, and consider utilizing your school’s multi-tiered system of supports to support affected students.
• Research programs that will work in your school communities to decrease out-of-school discipline. Important purposes of restorative justice include the reduction of suspensions and the increase of positive school climates.
• For students with disabilities, IEP teams should consider the impact instances of racist bullying, harassment, or intimidation on students’ social-emotional health and on their access to a free appropriate public education. IEP teams should identify supports and services to address any trauma experienced from bullying, including the implementation of cultural sensitivity programs to prevent bullying.

LEAs may contact the authors of this Alert or their regular counsel at AALRR if they have questions or would like assistance in preparing their LEA to follow the provisions of AB 1165.