BILL ANALYSIS Ó
AB 1212
Page 1
Date of Hearing: April 21, 2015
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Jose Medina, Chair
AB 1212
(Grove) - As Introduced February 27, 2015
[Note: This bill is doubled referred to the Assembly Judiciary
Committee and will be heard as it relates to issues under its
jurisdiction.]
SUBJECT: Postsecondary education: Student Freedom of
Association Act
SUMMARY: Establishes the Student Freedom of Association Act.
Specifically, this bill:
1)Requires, as a condition of receiving state funds for student
financial assistance, the governing board of each California
Community College (CCC) district, the California State
University (CSU) Trustees, and the University of California
(UC) Regents, to adopt a policy prohibiting their respective
campuses from discriminating against a student organization
with respect to a benefit available to any other student
organization, based on that organization's requirement that
its leaders or voting members satisfy either of following:
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a) Adhere to the organization's viewpoints or sincerely
held beliefs; and,
b) Be committed to furthering the organization's beliefs,
mission, or standards of conduct.
2)Specifies that a student or a student organization aggrieved
by a violation, as specified, may commence a civil action to
obtain appropriate injunctive and declaratory relief as
determined by the court; and, states, upon motion, a court may
award attorney's fees to a prevailing plaintiff in a civil
action, pursuant to this measure.
3)Defines the term "benefit" to include, but not necessarily be
limited to, all of the following:
a) Recognition;
b) Registration;
c) The use of campus facilities for meetings or speaking
purposes that are otherwise available to other campus
student organizations;
d) The use of channels of communication of the campus that
are otherwise available to other campus student
organizations; and,
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e) Funding sources that are otherwise available to other
campus student organizations.
4)Defines "public institution of higher learning" to include any
state postsecondary educational institution governed or
supervised by any of the following:
a) UC Regents;
b) CSU Trustee; and,
c) CCC district governing board.
5)Defines "student organization" to mean an association of
students organized around shared missions, interests, beliefs,
or education goals.
6)Specifies that this measure does not apply to any private
institution of higher learning.
7)Specifies that the provisions of this chapter are severable;
meaning, if any provision of this chapter or its application
is held invalid, that invalidity shall not affect other
provisions or applications that can be given effect without
the invalid provision or application.
EXISTING LAW: Prohibits the UC Regents, CSU Trustees, the
governing board of a CCC district, and the administrator of any
campus of said institutions from making or enforcing a rule
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subjecting a student to disciplinary sanction solely on the
basis of conduct that is speech or other communication that,
when engaged in outside a campus of said institutions, is
protected from governmental restriction by the First Amendment
to the United States Constitution or Section 2 of Article I of
the California Constitution (Education Code Section 66301).
FISCAL EFFECT: Unknown
COMMENTS: Need for the measure. According to the author, "In
2011, the California State University (CSU) Chancellor issued an
executive order calling for a so-called "anti-discrimination"
policy requiring student organizations to adopt an "all-comers"
policy - meaning that a student group may not reserve leadership
roles and voting privileges solely for students that adhere to
the principles of that group. As a result, campus organizations
may no longer require their members to actually agree with, and
stand up for, the core principles of the organization. The
campus Democrats must admit Republicans, a campus pro-life group
must admit abortion advocates, a campus LGBT group must admit
students who reject same-sex marriage, etc." The author
contends that, "AB 1212 will require the governing bodies of UC,
CSU, and California Community Colleges to adopt a policy
prohibiting their respective campuses from discriminating
against a student organization based on that organization's
requirement that its leaders or voting members adhere to the
organization's viewpoints or sincerely held beliefs."
Background. The Supreme Court held in Christian Legal Society
Chapter of the University of California, Hastings College of the
Law v. Martinez that a public law school does not violate the
Constitution when it "condition[s] its official recognition of a
student group-and the attendant use of school funds and
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facilities-on the organization's agreement to open eligibility
for membership and leadership to all students." 130 S. Ct. 2971,
2978 (2010). The Court referred to the open membership
requirement as an "all-comers policy" and concluded that such a
policy was a "reasonable, viewpoint-neutral condition on access
to the student-organization forum." The Court further held that
the all-comers policy did not violate the Free Exercise Clause
of the First Amendment (at 2995 n.27).
The Court expressly declined to address whether these holdings
would extend to a narrower nondiscrimination policy that,
instead of prohibiting all membership restrictions, prohibited
membership restrictions only on certain specified bases, for
example, race, gender, religion, and sexual orientation (at
2982, 2984). The Court concluded that the narrower policy is
constitutional.
California's public higher education. According to the state's
three public higher education systems, the CCC, CSU, and UC,
their policies for the creation of campus recognized student
organizations, are aligned to current law and the rulings of the
United States Supreme Court and California's Ninth Circuit
Court, which ruled that non-restrictive rules for membership and
leadership are constitutionally sound under federal law.
Nothing in the segments' policies preclude student groups from
forming that choose to hold exclusive member and leadership
roles, said groups are just not recognized as official campus
groups. Although there are several benefits to student groups
having official recognition status, such as discounted usage
fees for campus facilities, most campuses within the segments
still provide significantly discounted facilities usage fees to
non-recognized groups; some campuses do not even charge
non-recognized groups usage fees.
Arguments in support. According to the Christian Legal Society,
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"AB 1212 will protect college students from discrimination in
the vitally important context of state colleges and
universities." The Christian Legal Society argues that, "AB
1212 ensures that California taxpayers' money will not be spent
on unnecessary litigation that will result from California
public universities misinterpreting previous policies, or
creating new policies, to exclude religious groups from campus
because they require their leaders to share the groups'
religious beliefs.
Arguments in opposition. According to the California State
Student Association (CSSA), "AB 1212 sets a damaging precedent
to create legislation with particular groups in mind without
considering other consequences. CSSA argues that, "AB 1212
could lead to cultural clubs requiring their leaders be of
certain ethnicity, for example, and it should not be the
obligation of the state to financially support organizations
that are not inclusive of all students."
Committee considerations. California has clearly identified
goals in statute that all public elementary and secondary
schools, the CCCs, the CSU, the UC, and independent institutions
of higher education are designed to provide educational
opportunity and success to the broadest possible range of our
citizens, and shall provide the following:
1)Access to education, and the opportunity for educational
success, for all qualified Californians. Particular efforts
should be made with regard to those who are historically and
currently underrepresented in both their graduation rates from
secondary institutions and in their attendance at California
higher educational institutions.
2)Quality teaching and programs of excellence for their
students. This commitment to academic excellence shall provide
all students the opportunity to address issues, including
ethical issues, that are central to their full development as
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responsible citizens.
3)Educational equity not only through a diverse and
representative student body and faculty but also through
educational environments in which each person, regardless of
race, gender, gender identity, gender expression, sexual
orientation, age, disability, or economic circumstances, has a
reasonable chance to fully develop his or her potential (EC
Section 66010.2).
Additionally, Title VII of the Civil Rights Act of 1964, the
major federal anti-discrimination law, prohibits discrimination
on the basis of the following: race, color, sex (which includes
pregnancy and childbirth), religion, and national origin.
This measure appears to be in conflict to the state's codified
goals for higher education. By mandating that in order for the
CCC, CSU, and UC to be eligible to provide state financial aid
to their students, they must have policies in place that allow
for campus approved student groups to have exclusive leadership
and membership rules, does that take away from ensuring all
students, regardless of race, color, sex, religion and national
origin, have access to an educational environment whereby they
have a reasonable chance to fully develop their potential?
The Committee may wish to consider whether or not it desires to
pass out a measure that could be deemed a contradiction to the
state's goals for higher education and the Civil Rights Act of
1964.
Additionally, student groups all have the power of choice.
Students can choose to comply with the segments'
legally-mandated non-discrimination rules regarding membership
and leadership - in which cases said groups would be recognized
by their college and/or university and would receive funding and
other specific benefits associated with that recognition, or,
students can choose not to comply with the policies in place,
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subsequently not being recognized as an official campus
organization.
If this measure passes, will it create a slippery slope whereby
the campuses will be forced to approve requests for student
groups that may offend the sensibilities of some of their
students, faculty, and staff? What will occur if a student
group seeks to have a campus approve a White supremacist group,
or students from the Church of Satan group? If the campus
ultimately denies a student group seeking to have an exclusive
club that offends the sensibilities of students, faculty, and
staff, will the campus be in jeopardy of not being able to
provide state financial aid to the thousands of students who
rely on state financial aid? Will the campus face law suits?
The Committee may wish to consider whether or not it desires to
pass out a measure that could potentially disrupt thousands of
students from being able to receive state financial aid and open
up the flood gates with law suits.
REGISTERED SUPPORT / OPPOSITION:
Support
Chi Alpha Campus Ministries, U.S.A.
Christian Legal Society
InterVarsity Christian Fellowship/USA
AB 1212
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Opposition
California State Student Association
Analysis Prepared by:Jeanice Warden / HIGHER ED. / (916)
319-3960