BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1322
                                                                  Page  1

          Date of Hearing:   June 18, 2008

                           ASSEMBLY COMMITTEE ON EDUCATION
                                 Gene Mullin, Chair
                   SB 1322 (Lowenthal) - As Amended:  June 10, 2008

           SENATE VOTE  :   24-16
           
          SUBJECT  :   Public employment and property.

           SUMMARY  :   Deletes various references in statute to communism;  
          and, clarifies exemptions with regard to the required oath of  
          allegiance for public officers and employees.  Specifically,  
           this bill  :   


          1)Deletes the requirement that a specific signed statement be  
            provided to the school prior to the use of school property by  
            a private group; and, instead authorizes the school board to  
            require the furnishing of information as it deems reasonably  
            necessary to make the determination that the use of school  
            property for which the application is made would not violate  
            the Civic Center Act.


          2)Deletes membership in the Communist Party and violations of  
            health and welfare benefits provisions as reasons for  
            suspension and notice of dismissal for permanent school  
            employees, and removes a corresponding provision that allows  
            suspended school employees to provide a verified written  
            denial.

          3)Deletes membership in the Communist Party from the reasons for  
            which a permanent school employee may be dismissed.

          4)Deletes membership in the Communist Party as reasons for  
            suspension and notice of dismissal for permanent school  
            employees; and, removes a corresponding provision that allows  
            suspended school employees to provide a verified written  
            denial.

          5)Deletes membership in the Communist Party as a reason for  
            suspension and dismissal of classified school or community  
            college employees.









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          6)Deletes membership in the Communist Party as sufficient cause  
            to dismiss a public employee.

          7)Deletes provisions relative to public employees being  
            questioned under oath by non-law enforcement governmental  
            entities about overthrowing the government or membership in  
            the Communist Party.

          8)Replaces existing findings and declarations relative to the  
            threat of communism with language relative to the Cold War  
            threat of a communist takeover and constitutional protections  
            of free speech, political affiliation and the right to remain  
            silent.

          9)Clarifies that a public employee or applicant seeking public  
            employment shall be permitted to decline to take and subscribe  
            to the oath required by Section 3 of Article XX of the  
            California Constitution based on religious beliefs that  
            conflict with his or her ability to take and subscribe to the  
            oath without mental reservation, provided that he or she is  
            otherwise willing and able to uphold the United States  
            Constitution and the constitution and laws of this state and  
            to complete the duties of employment.

           EXISTING LAW  regarding the dismissal of school employees:

           1) Provides that a permanent school employee (such as teachers,  
             principals, and librarians) cannot be dismissed except for  
             one or more of the following causes:
               a)        Immoral or unprofessional conduct
               b)     Commission, aiding or advocating the commission of  
                 acts of criminal syndicalism.
               c)        Dishonesty.
               d)     Unsatisfactory performance.
               e)        Evident unfitness for service.
               f)        Physical or mental condition unfitting him or her  
                 to instruct or associate with children.
               g)     Persistent violation of or refusal to obey laws and  
                 regulations, as specified.
               h)     Conviction of a felony or of any crime involving  
                 moral turpitude.
               i)        Advocating or teaching communism with the intent  
                 to indoctrinate or to inculcate in the mind of any pupil  
                 a preference for communism, or advocating or being a  
                 member of an organization that advocates the overthrow of  








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                 the government.
               j)        Knowing membership by the employee in the  
                 Communist Party.
               aa)       Alcoholism or other drug abuse which makes the  
                 employee unfit to instruct or associate with children.  

           2) Authorizes the governing board of a school district to  
             suspend and give 30 day notice of dismissal to a permanent  
             employee upon the filing of written charges of immoral  
             conduct, conviction of a felony or any crime involving moral  
             turpitude, incompetence due to mental disability, willful  
             refusal to perform regular assignment without reasonable  
             cause, advocating or teaching communism, knowing membership  
             in the Communist Party or violations of health and welfare  
             benefits provisions.

           3) Authorizes a permanent employee who is suspended for  
             membership in the Communist Party or health and welfare  
             benefits violations to file with the school district  
             governing board a verified written denial within 10 days of  
             receiving notice of suspension.

           4) Requires a classified school employee or classified  
             community college employee to be suspended and dismissed for,  
             among other things, knowing membership in the Communist Party  
             or advocating or being a member of an organization that  
             advocates the overthrow of the government.

           EXISTING LAW  regarding the dismissal of public employees:

           1) Provides that it is sufficient cause to dismiss a public  
             employee (including school district employees) if he or she  
             advocates or is knowingly a member of either the Communist  
             Party or an organization which advocates the overthrow of the  
             government of the United States by force or violence. 

           2) Provides that a public employee may be required to answer,  
             under oath, specified questions, including, but not limited  
             to:
               a)        Personal advocacy of or membership since October  
                 3, 1945, in any organization   which advocated the  
                 forceful or violent overthrow of the government.

               b)     Knowing membership or past membership in the  
                 Communist Party.  








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           EXISTING LAW  regarding the use of school facilities:

           1) Permits private groups to use school facilities or grounds  
             for meetings and other activities, so long as such use does  
             not encroach upon the primary educational purpose of the  
             school subject to approval by the school district governing  
             board under the Civic Center Act.  Current law specifically  
             prohibits the use of school facilities or grounds by any  
             individual, society, group or organization to further any  
             program or movement to overthrow the United States or any  
             state government.

           2) Requires schools to verify that school property will not be  
             used in violation of the Civic Center Act by requiring a  
             signed statement from the applicant stating that, among other  
             things:
               a)        The property will not be used for the purpose of  
                 overthrowing the government of the United States or the  
                 State of California.
               b)     The applicant organization is not a Communist action  
                 organization or Communist front organization.  

           3) Authorizes the school district to require additional  
             information it deems necessary to determine that the use of  
             school property would not be in violation of the Civic Center  
             Act.  

           EXISTING LAW  regarding the loyalty oath for public officers and  
          employees:

          1)Requires that members of the Legislature and all public  
            officers and employees, except such inferior officers and  
            employees as may be by law exempted, must take and subscribe  
            to the oath in Section 3 of Article XX of the California  
            Constitution before he or she enters upon the duties of their  
            respective offices.  

          2)Defines "Public officer and employee" to include every officer  
            and employee of the State, including the University of  
            California, every county, city, city and county, district, and  
            authority, including any department, division, bureau, board,  
            commission, agency, or instrumentality of any of the  
            foregoing.









                                                                  AB 1322
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           FISCAL EFFECT  :   Unknown

           COMMENTS :   This bill deletes various references in statute to  
          communism, with regards to the employment of public employees,  
          and the use of public school facilities, and creates various  
          stipulations with regard to the required oath of allegiance for  
          public officers and employees.  

          According to the author, references to communism in statute are  
          antiquated and the threat of a communist takeover no longer  
          exists.  Moreover, the author contends that this bill is about  
          protecting constitutional freedoms:  freedom of speech, freedom  
          of political affiliation, and the freedom not to testify against  
          oneself.  The author argues that if a person can be fired from  
          his or her job for simply being a member of the Communist Party,  
          then it would implicitly be okay to fire a person for membership  
          in any party, including the Libertarian Party, the Republican  
          Party, or the Democratic Party.  

          This bill does not diminish current law with regard to the  
          dismissal of school, community college and public employees for  
          advocating, or belonging to a group that advocates the overthrow  
          of the government.  Moreover, this bill does not affect current  
          law that prohibits a teacher from advocating or teaching  
          communism with the intent to indoctrinate or to inculcate in the  
          mind of any pupil a preference for communism.  While California  
          joins other states in providing for the dismissal of teachers  
          who advocate the overthrow of the government, California is the  
          only state that provides for the dismissal of a teacher for  
          being a member of the Communist Party.

          Current law includes a cross-reference to health and welfare  
          benefits provisions as a reason for suspension and notice of  
          dismissal for permanent school employees.  Those health and  
          welfare benefits provisions do not reference any possible  
          violations.  It appears that the cross-reference is outdated and  
          irrelevant to the suspension and dismissal of school employees.   
          This bill deletes this cross-reference and those changes should  
          be considered technical clean-up.

          This bill would delete the requirement for a person who intends  
          to use school property on behalf of an organization to deliver a  
          signed statement, signed under penalty of perjury, that the  
          organization is not a Communist action or Communist front  
          organization, or does not, to the best of the person's  








                                                                  AB 1322
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          knowledge, advocate the overthrow of the government of the  
          United States or of the State of California by force, violence,  
          or other unlawful means.  The bill would instead permit local  
          school boards to require the furnishing of information as it  
          deems necessary to determine that the use of school property for  
          which application is made would not violate the provisions set  
          forth in the Civic Center Act.

          This bill would allow public employees, except elected or  
          appointed officials, to decline to take the loyalty oath based  
          on religious beliefs that conflict with the employee's ability  
          to sign the oath "without mental reservation," provided that the  
          employee's objection to the oath is not related to his or her  
          willingness and ability to uphold the Constitution and other  
          laws of the State of California and/or willingness and ability  
          to complete the duties of employment for which he or she is  
          being considered.

          These proposed changes address two recent cases within the CSU  
          system in which instructors who were members of the Quaker  
          religion were denied employment because the oath conflicted with  
          their religious conviction to avoid violence.  In one case,  
          Marianne Kearney-Brown was fired from her position at Cal State  
          East Bay when she inserted the word "non-violently" before  
          signing her oath so that it read that she would "nonviolently  
          support and defend the Constitution of the United States?."  She  
          was told by the CSU that adding the word "nonviolently" was  
          inconsistent with the oath and that she would be terminated  
          unless she signed the oath unaltered.  The University of  
          California allows employees to attach personal statements to the  
          oath to indicate religious beliefs.

           Previous legislation
           AB 137 (DeVore) from 2007 would have deleted references in  
          statute to the Communist Party and replaced those references  
          with "extremist terrorist network."  AB 137 failed passage in  
          the Assembly Judiciary Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Civil Liberties Union
          California Academic Senate of the California State University
          California Faculty Association








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          California Federation of Teachers
          California Teachers Association
          Friends Committee on Legislation of California
           
            Opposition 
          
          Capitol Resource Family Impact

           Analysis Prepared by  :    Irene Wan / ED. / (916) 319-2087