BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: SB 48
AUTHOR: Leno
INTRODUCED: December 13, 2010
FISCAL COMM: No HEARING DATE: March 23, 2011
URGENCY: No CONSULTANT: Lynn Lorber
NOTE : This bill has been referred to the Committees on
Education and Judiciary. A "do pass" motion should include
referral to the Committee on Judiciary.
SUBJECT : Instruction and instructional materials: sexual
orientation.
SUMMARY
This bill adds sexual orientation and religion to the list
of characteristics for which instructional materials must
not reflect adversely, and adds lesbian, gay, bisexual and
transgender Americans and others to the list of groups of
people whose role and contributions must be accurately
portrayed in instructional materials and included in social
science instruction.
BACKGROUND
Current law:
1) Prohibits any person from being subjected to
discrimination on the basis of disability, gender,
nationality, race or ethnicity, religion, sexual
orientation, or any other characteristic that is
contained in the definition of hate crimes in the
Penal Code, in any program or activity conducted by an
educational institution that receives, or benefits
from, state financial assistance or enrolls pupils who
receive state student financial aid.
(Education Code § 220)
2) Defines "hate crime" as a criminal act committed, in
whole or in part, because of one or more of the
following actual or perceived characteristics of the
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victim:
a) Disability.
b) Gender.
c) Nationality.
d) Race or ethnicity.
e) Religion.
f) Sexual orientation.
g) Association with a person or group with one
or more of these actual or perceived
characteristics. (Penal Code § 422.55)
3) Prohibits discrimination on the basis of the
characteristics listed in #1 in any aspect of the
operation of alternative schools or charter schools.
(EC § 235)
4) Requires instruction in social sciences to include the
early history of California and a study of the role
and contributions of both men and women, black
Americans, American Indians, Mexicans, Asians, Pacific
Island people, and other ethnic groups to the
economic, political, and social development of
California and the United States of America, with
particular emphasis on portraying the role of these
groups in contemporary society. (EC § 51204.5)
5) Prohibits a teacher from giving instruction and
prohibits a school district from sponsoring any
activity that promotes a discriminatory bias because
of a characteristic listed in #1. (EC § 51500)
6) Prohibits any textbook, or other instructional
materials, from being adopted by the State Board of
Education or any school district governing board which
contains any matter reflecting adversely upon people
because of their race, sex, color, creed, handicap,
national origin, or ancestry.
(EC § 51501)
7) Requires school district governing boards, when
adopting instructional materials, to include only
materials which, in their determination, accurately
portray the cultural and racial diversity of our
society, including:
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a) The contributions of both men and women in
all types of roles, including professional,
vocational, and executive roles.
b) The role and contributions of Native
Americans, African Americans, Mexican American,
Asian Americans, European Americans, and members
of other ethnic and cultural groups to the total
development of California and the United States.
c) The role and contributions of the
entrepreneur and labor in the total development
of California and the United States. (EC §
600040)
8) Prohibits a school district governing board from
adopting any instructional materials which, in its
determination, contains:
a) Any matter reflecting adversely upon people
because of their race, color, creed, national
origin, ancestry, sex, handicap, or occupation.
b) Any sectarian or denominational doctrine or
propaganda contrary to law. (EC § 60044)
The process of adopting instructional materials begins with
the review and update of the curriculum framework for a
subject area. The processes for reviewing frameworks and
adopting instructional materials has been suspended since
July 2009, pursuant to AB 2 of the Fourth Extraordinary
Session (Chapter 2, July 2009), which among other things,
prohibited the State Board of Education from reviewing
frameworks and adopting instructional materials until the
2013-14 school year. AB 2 also extended to the 2012-13
fiscal year the suspension of the requirement to purchase
instructional materials within any specific period of time
following adoption of those materials by the SBE. (EC §
60200.7 and 60422.1)
ANALYSIS
This bill adds sexual orientation and religion to the list
of characteristics for which instructional materials must
not reflect adversely, and adds lesbian, gay, bisexual and
transgender Americans and others to the list of groups of
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people whose role and contributions must be accurately
portrayed in instructional materials and included in social
science instruction. Specifically, this bill:
1) Adds Pacific Islanders and lesbian, gay, bisexual and
transgender Americans to the list of groups of people
whose role and contributions in the development of
California and the United States must be accurately
portrayed in instructional materials. (Education Code
§ 60040)
2) Adds sexual orientation and religion to the list of
characteristics for which instructional materials
shall not reflect adversely upon, and updates
terminology (such as changing "sex" to "gender,"
"color" and "creed" to "race or ethnicity"), all which
mirror current Education Code and Penal Code sections
relative to discrimination and hate crimes. This bill
also deletes "occupation" from the list. (EC § 60044)
3) Adds the role and contributions of lesbian, gay,
bisexual and transgender Americans and European
Americans, to the list of groups of people that are
required to be included in social science instruction
specific to the history of California, and updates
terminology (such as changing "black Americans" to
"African Americans" and "Mexicans" to "Mexican
Americans"). (EC § 51204.5)
4) Adds sexual orientation and religion to the list of
characteristics for which instructional materials
shall not be adopted that reflect adversely upon, and
updates terminology (such as changing "sex" to
"gender," "color" and "creed" to "race or ethnicity"),
all which mirror current Education Code and Penal Code
sections relative to discrimination and hate crimes.
(EC § 51501)
5) Adds expressly what is already in statute by reference
with respect to the characteristics for which
instruction and school sponsored activities are
currently prohibited from promoting a discriminatory
bias against, and changes "promotes a discriminatory
bias" to "reflects adversely upon" which mirrors
existing law. (EC § 51500)
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6) States legislative intent that alternative and charter
schools take notice of this bill and another section
of the Education Code, which prohibits discrimination
on the basis of disability, gender, nationality, race
or ethnicity, religion, sexual orientation, or other
specified characteristics in any aspect of the
operation of alternative and charter schools.
STAFF COMMENTS
1) Purpose of this bill . According to the author,
"Current law requires that the historical
contributions of traditionally underrepresented groups
be included in instructional materials. The absence
of any reference to the many important historical
contributions of lesbian, gay, bisexual or transgender
(LGBT) Americans to the development of this state and
nation is a powerful exception. The historically
inaccurate exclusion f LGBT Americans in social
sciences instruction as well as the spreading of
negative stereotypes in school activities sustains an
environment of discrimination and bias in schools
throughout California. This is a primary obstacle to
addressing California's bullying epidemic that
continues to plague a majority of LGBT youth."
2) What is the effect of this bill ? Current law
prohibits discrimination on the basis of six
characteristics (as listed in #1 in the Background,
which includes sexual orientation) in any program or
activity conducted by an educational institution that
receives state financial assistance. Current law
prohibits instruction and school sponsored activities
from promoting a discriminatory bias against a person
on the basis of those same six characteristics. This
bill prohibits instructional materials from reflecting
adversely on people based on those six
characteristics.
While this bill adds people who are lesbian, gay, bisexual
and transgender to the groups of people whose role and
contributions must be included in social science
instruction, this bill does not specifically require
the inclusion of lesbian, gay, bisexual or transgender
people in the History-Social Science framework (which
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is used for the development of instructional
materials). It is possible pursuant to this bill, as
well as pursuant to current law, that a school could
purchase instructional materials that include the role
and contributions of people who are lesbian, gay,
bisexual or transgender despite the fact that the
state will not consider the adoption of any new
instructional materials until the 2013-14 school year.
3) Update of History-Social Science framework was
underway . The Curriculum Commission approved the
draft update of this framework for field review on
July 17, 2009. However, suspension of the framework
and instructional material processes was implemented
beginning July 28, 2009, meaning that no actual field
reviews or online survey will occur for this
framework.
4) Technical amendment needed . This bill updates
terminology but one term was erroneously omitted. On
page 3, line 5, add "Mexican Americans."
5) Related legislation .
AB 620 (Block) among other things,
requires each segment of public postsecondary
education to develop and implement professional
development and awareness training programs to,
among other things, train faculty with respect to
generating an inclusive curriculum and address
harassment of individuals based on sexual
orientation and gender identity. AB 620 is
pending in the Assembly Higher Education
Committee.
1) Prior legislation .
SB 1437 (Kuehl, 2006) was very similar to
this bill. SB 1437 was vetoed by Governor
Schwarzenegger, whose veto message read:
No teacher or textbook in our schools should ever
intentionally demean or disparage any group in
our society, including discrimination based on
sexual orientation.
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I am vetoing Senate Bill 1437 because this bill
attempts to offer vague protection when current
law already provides clear protection against
discrimination in our schools based on sexual
orientation.
Education Code section 200 referring to Penal
Code section 422.55 governing hate crimes,
provides that It is the policy of the State of
California to afford all persons in the public
schools, equal rights and opportunities in our
state educational institutions, regardless of
their sex, ethnic group, race, national origin,
religion, disability and sexual orientation.
Education Code section 220 expands the protection
of section 200, prohibiting such discrimination
in any program or activity conducted by an
educational institution. In addition, Education
Code section 60045, subdivision (a), provides
that all instructional materials shall be
accurate, objective, and current and suited to
the needs and comprehension of pupils at their
respective grade levels.
This protection specifically covers school
programs, activities, instruction and
instructional materials. I and this
administration are firmly committed to the
vigorous enforcement of these protections.
SB 1437 deals exclusively with Education Code
sections 51500, 51501, and 60044 prohibiting
instruction, materials and activities that
reflect adversely on persons. Not only is this
term extremely vague, and potentially confusing,
but I am not aware of any published case brought
under these code sections in which individuals
within the protected classes have successfully
protected their rights under these statutes. But
courts have confirmed that individuals in the
protected classes can state a legal claim for
violation of education Code section 200 and 220.
Therefore, since the Education Code already
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specifically protects against discrimination to
groups based on their sexual orientation and
includes programs, instructions and instructional
materials. I am vetoing this bill because the
vagueness of the term reflects adversely would
not strengthen this important area of legal
protection from bias based on sexual orientation.
SB 777 (Kuehl, Chapter 569, 2007) revised
the current list of prohibited bases of
discrimination and the kinds of prohibited
instruction, activities, and instructional
materials in the Education Code, and instead
refers to the protected characteristics contained
in the definition of hate crimes in the Penal
Code. SB 777 also defined disability, gender,
nationality, race or ethnicity, religion, and
sexual orientation for this purpose.
SUPPORT
American Federation of State County and Municipal Employees
California Teachers Association
City of West Hollywood
Equality California
Fresno County Democratic Central Committee
Gay-Straight Alliance Network
Los Angeles Unified School District
Public Advocates
San Joaquin Valley Democratic Club
The Trevor Project
An individual
OPPOSITION
Advanced Marketing Concepts, Inc.
Bible Baptist Church
California Right to Life Committee, Inc.
Calvary Chapel of South Lake Tahoe
Calvary Christian Church
Capitol Resource Institute
Concerned Parents United
Concerned Women for America of California
Concerned Women for America of Central California
Diversity Reform USA
Eagle Forum of Sacramento
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Faith Assembly of God
First Southern Baptist Church
GateWay Bible Church
Hamilton Square Baptist Church
Heritage Christian Fellowship
New Harvest Christian Fellowship
Novato Parents & Family Coalition
Praise Center Church
Protect Kids Foundation
Riverpark Bible Church
The Conservative Party (California)
Thousand Oaks Christian Fellowship
Traditional Values Coalition
Vallejo Involved Parents & Students
Numerous individuals