BILL ANALYSIS Ó
AB 1888
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Date of Hearing: May 11, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
AB
1888 (Low) - As Amended May 2, 2016
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Urgency: No State Mandated Local Program: NoReimbursable: No
SUMMARY:
This bill requires, as a condition of voluntary participation in
the Cal Grant Program, each Cal Grant participating public and
private higher education institution, commencing in 2017-18, to
certify both of the following to the California Student Aid
Commission (CSAC):
AB 1888
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1)The institution does not subject an applicant, student or
employee to discrimination on the basis of disability, gender,
gender identity, gender expression, nationality, race or
ethnicity, religion, sexual orientation, age, or disability or
any characteristic contained in the state's prohibition of
hate crimes, per Penal Code Section 422.6.
2)The institution shall not have, apply for, or receive a waiver
from the United States Department of Education (USDE) from
federal nondiscrimination requirements for the receipt of
funds under Title IX of the Education Amendments of 1972.
The bill also:
3)Provides that, notwithstanding (1):
a) A religious educational institution may hire or employ,
or admit or enroll, persons of a particular religion if
that educational institution is controlled by a religious
institution and the educational institution is directed
toward the propagation of that particular religion.
b) An institution that since its establishment has had a
policy of admitting students of only one sex may continue
to do so.
4)Stipulates that (2) does not apply to an institution that
received a waiver, but provides evidence to CSAC prior to
2017-18 that it has relinquished the waiver.
5)Stipulates the Cal Grant recipients attending an institution
prior to the academic year in which the institution is deemed
ineligible for Cal Grant participation pursuant to this bill
are eligible for renewal of their Cal Grant awards for as long
as they remain continuously enrolled at that institution.
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FISCAL EFFECT:
1)CSAC anticipates needing one new auditor position ($120,000
annually GF) to review institutional compliance and
student/employee discrimination complaints. The commission
indicates that this is similar to the workload demands of
recently enacted legislation that also conditioned Cal Grant
participation of specific institutional actions.
2)Given the consequences to the institutions that could be
impacted by this bill and the legal issues raised by this bill
(see Comment #4 below), the probability of litigation against
the state appears fairly high. The state could therefore incur
significant legal costs, at least in the hundreds of thousands
of dollars.
3)Based on information from CSAC, seven institutions that
participate in the Cal Grant Program have either received or
requested a federal waiver: Biola University, Fresno Pacific
University, Loma Linda University, Pacific Union College, The
Master's College, Simpson University, and William Jessup
University. (Pepperdine University requested withdrawal of its
religious exemption in January 2016.) In 2014-15, about 3,200
students at these seven schools-representing 20% to 50% of
their respective undergraduate enrollments-received $26.6
million in Cal Grants. The most recent amendments to this bill
allow these students to remain that their institution and
continue to receive their Cal Grant. These costs will decline
over four years as these students complete their Cal Grant
eligibility. If these schools do not relinquish their federal
waivers, and to the extent new students eligible under the Cal
Grant Entitlement Program would attend one of these schools,
and thus forego their Cal Grant award, the state would realize
unknown, but potentially significant Cal Grant savings. (The
maximum Cal Grant award at such schools is currently about
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$8,000.) Many such students likely would elect to attend
another institution that participates in the Cal Grant
program, however, thus the extent of any possible savings is
unknown.
To the extent some of the Cal Grant-eligible students
described above would instead attend a California Community
College or the California State University (CSU), the state
would bear the costs of those students attendance. For every
100 additional CCC or CSU students, state costs would be
$475,000 (GF-Prop 98) at the CCC or $750,000 (General Fund) at
the CSU. These costs would be offset to some extent by savings
from lower Cal Grant awards amounts at the CCC and CSU.
COMMENTS:
1)Purpose. According to the author, AB 1888 upholds California's
commitment to nondiscrimination by requiring all Cal Grant
participating institutions to certify to CSAC that they shall
not discriminate on the basis of a protected class, including,
sex, sexual orientation, gender identity, or gender
expression. The author argues that allowing religion to be
used as an instrument for discrimination goes against
California public policy and should not be supported with
state funding.
Equality California (EQCA), the bill's sponsor, argues that
religious protection should not be used to justify
discrimination. According to EQCA, overly broad religious
exemptions leave room for individuals and institutions to
discriminate depending on how they apply, or choose not to
apply, their religious beliefs.
2)The Equity in Education Act prohibits, among other
protections, a person from being subjected to discrimination
on the basis of disability, gender, gender identity, gender
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expression, nationality, race or ethnicity, religion, sexual
orientation, or any other characteristic that is contained in
the definition of hate crimes, 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. An exemption is
provided for an educational institution that is controlled by
a religious organization if the application would not be
consistent with the religious tenets of that organization.
3)Federal Title IX of the Education Amendments of 1972 (Title
IX) prohibits discrimination, on the basis of sex, in
educational programs or activities receiving Federal financial
assistance. Various exemptions are provided, including for
fraternities and sororities, military institutions,
traditional male or female institutions, and institutions
controlled by religious organizations. An exemption is
provided for religious colleges that fall within specified
guidelines. Federal guidance issued in 2014 clarified that the
Title IX discrimination prohibition "extends to claims of
discrimination based on gender identity or failure to conform
to stereotypical notions of masculinity or femininity."
In response to the USDE guidance, a number of religious
institutions have applied for exemption to Title IX. According
to a report from the HRC, 56 schools nationwide have requested
an exemption, 33 have received an exemption from the law as it
pertains to protecting students on the basis of gender
identity, and 23 have obtained an exemption based on laws
pertaining to protecting students on the basis of sexual
orientation. Schools most commonly requested exemptions from
provisions of the law relating to housing, access to
facilities, and athletics.
4)Opposition. The Association of Independent California
Colleges and Universities (AICCU) argues, based on current
enrollments, that AB 1888 could impact almost 9,000 who would
otherwise attend one of the state's faith-based colleges.
These low-income students would either have to forgo their Cal
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Grants or attend a different institution that would still
participate in the Cal Grant program. Several AICCU member
schools expressed similar concerns.
The National Center for Law and Policy argues that AB 1888
unnecessarily restricts educational choices and "serves as an
existential threat to church autonomy, the self-governance of
religious organizations, and religious liberty?" The Center
alludes to lawsuits challenging the unconstitutionality of AB
1888, "which coerces a waiver of federal constitutional and
statutory rights.
Analysis Prepared by:Chuck Nicol / APPR. / (916)
319-2081