BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 48 (Leno)
As Amended March 29, 2011
Hearing Date: April 5, 2011
Fiscal: No
Urgency: No
EDO:rm
SUBJECT
Instruction: Prohibition of Discriminatory Content
DESCRIPTION
Existing law requires that social science instruction and
instructional materials accurately portray the contributions of
both men and women, black Americans, American Indians, Mexicans,
Asians, Pacific Island people and other ethnic groups in the
historical development of California. This bill would require
instruction and instructional materials to include a study of
the role and contributions of persons with disabilities, and
lesbian, gay, bisexual, and transgender (LGBT) Americans, to the
development of California and the United States.
This bill would also prohibit the State Board of Education and
the governing board of any school district from adopting
textbooks or other instructional materials that contain any
matter that reflects adversely upon a person's religion, or
sexual orientation. This bill would also update the terms
referring to other protected classes already listed in the
Education Code.
BACKGROUND
California has a history of prohibiting discriminatory bias in
education, dating back to 1965 when the first statutory
prohibition against curricula and books reflecting bias against
persons because of national origin and ancestry was enacted.
Statutory prohibitions against discrimination based on sex and
disability followed in 1973 and 1987, respectively.
(more)
SB 48 (Leno)
Page 2 of ?
The Student Safety and Violence Prevention Act of 2000 (AB 537
(Kuehl), Chapter 587, Statutes of 1999), banned discrimination
in schools against individuals of specified categories known as
"protected classes." This law applies to all publicly-funded
educational programs and activities and includes a prohibition
of discrimination based on sexual orientation, gender identity
and association with another person who is protected under these
categories.
SB 1437 (Kuehl, 2006) would have directed the school governing
boards to include only instructional material that accurately
portrayed the cultural, racial, gender, and sexual diversity of
our society. Additionally, the bill would have required social
science instruction to include the contributions of people who
are LGBT to the economic, political, and social development of
California and the United States. This bill was vetoed by
Governor Schwarzenegger. (See Comment 4.)
In 2007, SB 777 (Kuehl, Chapter 569, Statutes of 2007) revised
the list of prohibited bases of discrimination and the kinds of
prohibited instruction, activities, and instructional materials
in the Education Code, and instead cross-referenced the
protected characteristics in the definition of hate crimes in
the Penal Code which includes sexual orientation. SB 777 also
defined those terms listed and changed any reference to
"handicapped" individuals to individuals with physical
disabilities.
This bill would add persons with disabilities, and lesbian, gay,
bisexual, and transgender Americans to the list of groups of
people whose role and contributions must be accurately portrayed
in social science instruction and instructional materials. This
bill would also prohibit the State Board of Education and the
governing board of any school district from adopting textbooks
or other instructional materials that reflect adversely upon a
person's religion, or sexual orientation.
CHANGES TO EXISTING LAW
1.Existing law requires instruction in social sciences to
include the role and contributions of both men and women,
black Americans, American Indians, Mexicans, Asians, Pacific
Island people and other ethnic groups in the historical
development of California. (Ed. Code Sec. 51204.5.)
This bill would add persons with disabilities and lesbian,
SB 48 (Leno)
Page 3 of ?
gay, bisexual, and transgender Americans to the list of
characteristics that instruction in social sciences is
required and would update the list to the presently accepted
terminology.
2.Existing law prohibits the State Board of Education and the
governing board of a school district from adopting for use in
the public schools any instructional materials that reflect
adversely upon persons because of their race, sex, color,
creed, handicap, national origin, or ancestry. (Ed. Code Sec.
51501.)
This bill would add sexual orientation and religion to the
list of characteristics and update the list to the presently
accepted terminology.
3.Existing law requires the governing board of a school district
to adopt instructional materials that include the roles of
both men and women, and accurately portray the role and
contributions of Native Americans, African Americans, Mexican
Americans, Asian Americans, European Americans, and members of
other ethnic and cultural groups to the total development of
California and the United States. (Ed. Code Sec. 60040).
This bill would revise the above list to include contributions
from Pacific Islanders, lesbian, gay, bisexual, and
transgender Americans, and persons with disabilities.
4.Existing law prohibits the governing board of a school
district from adopting any instructional materials for use in
the schools that contain any matter reflecting adversely on
persons because of their race, color, creed, national origin,
ancestry, sex, handicap, or occupation. (Ed. Code Sec.
60044.)
This bill would revise the list of characteristics to include
religion, and sexual orientation, and update the list to the
presently accepted terminology.
5.Existing law prohibits a teacher from giving instruction, and
a school district from sponsoring any activity that promotes a
discriminatory bias because of a characteristic listed in
Education Code Section 220 (race or ethnicity, gender,
religion, disability, nationality, sexual orientation). (Ed.
Code Sec. 51500.)
SB 48 (Leno)
Page 4 of ?
This bill would instead list the protected classes rather than
cross-reference Education Code Section 220.
This bill also states the intent of the Legislature that
alternative and charter schools take notice of the provisions
of this bill.
COMMENT
1. Stated need for the bill
The author writes:
The Fair, Accurate, Inclusive and Respectful (FAIR) Education
Act ensures that lesbian, gay, bisexual, and transgender
Americans are included and recognized for their important
historical contributions to the economic, political, and
social development of California, and ensures that
discriminatory bias and negative stereotypes based on sexual
orientation are prohibited in school activities and
instruction, and instructional materials.
This bill adds LGBT to the existing list of underrepresented
cultural and ethnic groups that are covered by inclusionary
instruction requirement. In addition, SB 48 includes sexual
orientation as a characteristic covered under existing
anti-discrimination protections pertaining to school
activities and instruction, and instructional materials.
Additionally, this bill updates the statute to conform to more
recent references to underrepresented cultural groups. As
amended, the bill would add "persons with disabilities" to
protections for underrepresented groups.
In support of this bill, the California Teachers Association
(CTA) writes, "CTA is pleased to support this measure to ensure
the areas of social science instruction be expanded to include
the contributions of LGBT individuals and other ethnic and
cultural groups as such supporting the human and civil rights of
all students."
Also in support, California Church Impact states, "we represent
1.5 million members of the mainstream, progressive Protestant
and Orthodox communities of faith. We do not desire, from
either political or moral positions, to consign the
contributions of gay and lesbian members of our society to the
'hidden history' we so easily ignore. Our faith principles
SB 48 (Leno)
Page 5 of ?
uphold the equal humanity and therefore equal contributions of
all members of our society, and we salute you for shining the
light on people who deserve acknowledgement."
2. Updating the required social science instruction and
instructional materials for students
The right to a public education in California is a fundamental
right guaranteed and protected by the California Constitution
(Constitution of California, art. IX, sec. 5.) In recognition
of the importance of education in our society, the Legislature
has enacted numerous laws designed to promote equality in
educational opportunities and to safeguard students against
discriminatory practices in public schools.
a. Role and contributions of all Americans to the
development of California and the United States should be
included in social science instruction
Under existing law, instruction in the social sciences is
required to include the historical role and contributions of
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. This bill would add disabled
persons and lesbian, gay, bisexual, and transgender Americans
to this list and update these terms and conform them to
presently accepted terminology.
The author and proponents argue that "the absence of any
reference to the many important historical contributions of
LGBT Americans to the development of this state and nation is
a powerful exception. The historically inaccurate exclusion
of 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 school
throughout California. This is a primary obstacle to
addressing California's bullying epidemic that continues to
plague a majority of LGBT youth. According to the Preventing
School Harassment survey, in schools where the contributions
of the LGBT community are included in educational instruction,
incidences of bullying declined by over half and LGBT students
were more likely to feel they have an opportunity to make
positive contributions at school."
Disability Rights California notes that "people with
SB 48 (Leno)
Page 6 of ?
disabilities are the largest minority group in the United
States, with 54 million people, 6 million in California alone.
Most Californians are largely unaware of the significant
historical contributions people with disabilities have made."
In addition to all the protected classes of Americans,
existing law requires that instructional materials include
contributions of both men and women in all types of roles,
including professional, vocational, and executive roles.
Further, the role and contributions of the entrepreneur and
labor in the development of California and the United States
must be included. This bill updates the social science
curriculum by requiring schools to include the role and
contributions of persons with disabilities and LGBT Americans
in social science instruction. As discussed above, California
has a history of requiring instruction that includes the
various roles of different ethnic, gender, and minority
groups. The general purpose of requiring this diversity in
school instruction is to promote understanding, and to
recognize accomplishments of all groups of people.
This bill would ensure equal representation in education of
all people, by requiring instruction in the social sciences to
include the roles and contributions of persons with
disabilities and LGBT Americans.
b. Instructional materials and textbooks should not reflect
adversely upon a person based on a particular
characteristic
Existing law also prohibits the State Board of Education or
any school district governing board from adopting any
textbooks or instructional materials that reflect adversely
upon people because of their race, sex, color, creed,
handicap, national origin, or ancestry. This bill would also
prohibit schools from adopting textbooks or other
instructional materials that contain any matter that reflects
adversely upon a religion, or sexual orientation.
Staff notes that the 2009 Budget Act provided that the State
Board of Education is prohibited from reviewing frameworks and
adopting instructional materials until at least the 2013-14
school year. As a result, this section would not take effect
at least until then. Additionally, until the 2012-13 fiscal
year the governing board of a school district is not required
SB 48 (Leno)
Page 7 of ?
to provide students with instructional materials adopted by
the state board within a specified period of time.
The California Safe Schools Coalition (the coalition) has
conducted numerous research projects on the topic of LGBT
students' experience in schools. The coalition has found that
harassment in schools as it relates to "gender non-conformity"
is more prevalent when schools lack a curriculum focused on
LGBT issues. Moreover, the National Center for Lesbian Rights
(NCLR) writes that "children and youth need to feel
self-confident and safe both emotionally and physically in
order to learn and thrive in school. They are denied a safe
school environment when they are exposed to negative
stereotypes in classroom materials and school-sponsored
activities." By prohibiting the State Board of Education and
local governing boards from adopting textbooks that reflect
adversely on LGBT Americans, it is hoped that this type of
harassment may subside.
c. This bill would update the list of protected classes
throughout the Education Code which would conform to other
anti-discrimination statutes
The current list of protected classes in the Education Code is
outdated and inconsistent throughout the various sections.
For example, in more than one section there are references to
"black Americans." This bill would update the reference to
say "African Americans" which is the presently accepted
terminology. Additionally, this bill would conform the list
of protected classes to the list contained in the Unruh Civil
Rights Act and the Fair Employment and Housing Act. This
should lead to less confusion and greater consistency in
application.
d. Alternative and charter schools should take notice of
these provisions
This bill would also express the intent of the Legislature
that alternative and charter schools take notice of these
provisions in accordance with Education Code Section 235 which
expressly states that in the operation of alternative and
charter schools there shall be no discrimination on the basis
of disability, gender, nationality, race or ethnicity,
religion, sexual orientation, or other specified
characteristics.
SB 48 (Leno)
Page 8 of ?
3. Opposition's major concerns
Several individuals and faith-based service providers have
expressed opposition to this bill. The Calvary Christian Church
believes that this bill "intends to play with the minds of all
California's students; even as young as Kindergarten!! Whatever
the personal beliefs are of adults on homosexuality, bisexuality
and transgender, the state has NO RIGHT trying to influence the
beliefs, thinking and mindset of young students! You are
turning teachers into state-sanctioned propagandists by forcing
them to teach our youth about sexual lifestyles that parents do
not want taught." Further, the Concerned Women of America
believe that this bill's "goal is to be exclusive of other
people or viewpoints not in agreement with the homosexual,
bisexual, or transgender lifestyles . . . at a time when our
state lacks dollars to pay for the current needs in education,
it is incredible that this legislature is actually considering
adding more financial burden on schools to pay for this
evaluation and for new textbooks."
Also, the California Catholic Conference writes that this bill
is unnecessary and overly intrusive, arguing that it "makes the
characteristic of a historical actor preeminent in the study of
his or her accomplishment."
The author responds to this concern by stating that "inclusive
curriculum has been an important educational policy in
addressing underrepresentation of groups such as women, African
Americans, Native Americans, Asian Americans, Pacific Islanders,
and others. The same applies for LGBT Americans. SB 48 does
not imply that a characteristic would be preeminent, but rather
that the important historical contributions of underrepresented
groups must be affirmatively included in order to address their
historic exclusion."
It is important to note that this bill would require instruction
to include the historical contributions of LGBT Americans, much
like it is already required for other groups of protected
classes. For example, many schools may include in their social
science curriculum instruction that Willie Brown was the first
African American Speaker of the California State Assembly.
Likewise, this bill may require schools to include in the
curriculum that Harvey Milk was the first openly gay person to
be elected to public office in California. This bill would
simply include the contributions of all Americans in the
development of California and the United States.
SB 48 (Leno)
Page 9 of ?
4. SB 1437 veto message
This bill is similar to the enrolled version of SB 1437. In
vetoing SB 1437, Governor Schwarzenegger stated:
No teacher or textbook in our schools should ever
intentionally demean or disparage any group in our society,
including discrimination based on sexual orientation. 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.
SB 48 (Leno)
Page 10 of ?
Therefore, since the Education Code already 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.
Support : American Federation of State County and Municipal
Employees; Asian/Pacific Islander Youth Promoting Advocacy &
Leadership; California Church Impact; California Teachers
Association; City of West Hollywood; Disability Rights
California; Fresno County Democratic Central Committee;
Gay-Straight Alliance Network; Los Angeles Unified School
District; National Center for Lesbian Rights; Public Advocates;
San Joaquin Valley Democratic Club; School for Integrated
Academics & Technologies; San Francisco Unified School District;
Transgender Law Center; The Trevor Project
Opposition : Advanced Marketing Concepts, Inc.; California
Catholic Conference, Inc.; Capitol Resource Family Impact;
Calvary Chapel of Chino Hills; Calvary Christian Church of Saint
Helena; Concerned Women for America of California; Concerned
Women for America of Central California; Eagle Forum of Long
Beach; Echos of Faith World Outreach Ministries; Faith Assembly
of God; First Baptist Church; Hamilton Square Baptist Church;
Heritage Christian Fellowship; Holy Highway Church; Immaculate
Heart of Mary Parish; La Haye Enterprises, Inc.; Law Offices of
Reuben G. Lucero; New Harvest Christian Fellowship; New Life
Fellowship of Perris; Novato Parents & Family Coalition; Pacific
Justice Institute; Praise Center Church; Riverpark Bible Church;
Saint Charles Borromeo Parish; Swedemasters; The Conservative
Party (California); Thousand Oaks Christian Fellowship;
Traditional Values Coalition; Vallejo Involved Parents &
Students; Ygnacio Valley Republican Women, Federated; numerous
individuals
HISTORY
Source : Equality California and Gay-Straight Alliance Network
Related Pending Legislation : None Known
Prior Legislation :
SB 48 (Leno)
Page 11 of ?
SB 777 (Kuehl, Chapter 569, Statutes of 2007) revised the list
of prohibited bases of discrimination and the kinds of
prohibited instruction and activities and, instead, referred to
disability, gender, nationality, race or ethnicity, religion,
sexual orientation, or any other characteristic contained in the
definition of hate crimes contained in the Penal Code.
SB 1437 (Kuehl, 2006) (See Background and Comment 4.)
AB 537 (Kuehl et al., Ch. 587, Statutes of 1999) added the
characteristics used in the definition of a hate crime to the
prohibited bases of discrimination found in the Education Code.
AB 222 (Kuehl of 1999) would have added sexual orientation into
the prohibited bases of discrimination throughout the Education
Code. This bill died on the Assembly Floor.
AB 499 (Kuehl, Ch. 914, Statutes of 1998) reorganized, updated,
and clarified the student civil rights protections found in the
Education Code.
Prior Vote : Senate Committee on Education (Ayes 6, Noes 3)
**************