BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON EDUCATION
                              Senator Carol Liu, Chair
                                2015 - 2016  Regular 

          Bill No:             SB 1146            
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          |Author:    |Lara                                                 |
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          |Version:   |March 28, 2016                          Hearing      |
          |           |Date:     April 6, 2016                              |
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          |Urgency:   |No                     |Fiscal:     |Yes             |
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          |Consultant:|Kathleen Chavira                                     |
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          NOTE:     This bill has been referred to the Senate Committees  
                    on Education and Judiciary.  A "do pass" motion should  
                    include referral to the Senate Judiciary Committee.

          Subject:  Postsecondary education:  nondiscrimination


            SUMMARY
          
          This bill narrows the exemption from the Equity in Higher  
          Education Act for postsecondary educational institutions  
          controlled by a religious organization (consistent with federal  
          Title IX regulations), requires that any claim for exemption  
          under federal or state law be accompanied by specified  
          disclosures, requires related materials to be submitted to, and  
          posted by, the California Student Aid Commission (CSAC) on its  
          website, as specified, and authorizes any individual denied  
          equal rights or opportunities by an institution claiming such  
          exemption to pursue remedy through a civil action.

            BACKGROUND
          
          Existing federal law establishes Federal Title IX of the  
          Education Amendments of 1972 (Title IX) to prohibit  
          discrimination, on the basis of sex, in educational programs or  
          activities receiving Federal financial assistance.  Existing law  
          provides for various  exemptions from these provisions,  
          including for fraternities and sororities, military  
          institutions, traditional male or female institutions, and  
          institutions controlled by religious organizations.  (Title 20  







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          United States Code, Title 20  1681-1688)

          Existing law provides that an institution will be considered to  
          be controlled by a religious organization for purposes of a  
          Title IX religious exemption if one or more of the following  
          conditions is true:

          a)   It is a school or department of divinity, defined as an  
               institution or a department or branch of an institution  
               whose program is specifically for the education of students  
               to prepare them to become ministers of religion or to enter  
               upon some other religious vocation, or to prepare them to  
               teach theological subjects.

          b)   It requires its faculty, students or employees to be  
               members of, or otherwise espouse a personal belief in, the  
               religion of the organization by which it claims to be  
               controlled.

          c)   Its charter and catalog, or other official publication,  
               contains explicit statement that it is controlled by a  
               religious organization or an organ thereof or is committed  
               to the doctrines of a particular religion, and the members  
               of its governing body are appointed by the controlling  
               religious organization or an organ thereof, and it receives  
               a significant amount of financial support from the  
               controlling religious organization or an organ thereof.  
               (Code of Federal Regulations, Title 34  106.12)

          Existing state law establishes the Equity in Higher Education  
          Act (Act) to prohibit a person from being subjected to  
          discrimination on the basis of disability, gender, gender  
          identity, gender expression, nationality, race or ethnicity,  
          religion, sexual orientation, or any other characteristic that  
          is contained in the statutory 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.  
          (Education Code  66270)

          Existing state law provides an exemption from the provisions of  
          the Act 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. 








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          (Education Code  66271)   

          Existing law also declares the Legislature's intent that the Act  
          be interpreted as consistent with other specified federal and  
          state laws, including Title IX, except where the Act grants more  
          protections or imposes additional obligations.  
          (Education Code  66252)

            ANALYSIS
          
          This bill:

          1)   Narrows the exemption from the Equity in Higher Education  
               Act currently extended to a postsecondary educational  
               institution controlled by a religious organization to be  
               applicable only to education programs or activities offered  
               by the institution that prepare students to do any of the  
               following: 

               a)        Become ministers of the religion.

               b)        Enter upon some other religious vocation.

               c)        Teach theological subjects pertaining to the  
               religion.

          2)   Requires that institutions claiming a religious exemption  
               under Title IX or the Equity in Higher Education Act comply  
               with disclosure requirements. Specifically it:

                    a)             Requires disclosure to current and  
                    prospective students, faculty, and employees, of the  
                    basis for claiming such exemption.

                    b)             Requires display of such disclosure in  
                    a prominent campus or school site location.

                    c)             Requires inclusion of such disclosure  
                    in written materials sent to prospective students  
                    seeking admission.

                    d)             Requires that disclosure be provided as  
                    part of orientation programs for new students, as  
                    specified.  








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                    e)             Requires that disclosure be provided to  
                    faculty members, administrative staff, and support  
                    staff annually, as specified, and to new employees  
                    upon hiring.

                    f)             Requires that disclosure be included in  
                    any institutional publication that sets forth rules,  
                    regulations, procedures and standards of conduct for  
                    the institution. 
                
          3)   Requires that materials and information related to the  
               request and granting of an exemption from Title IX or the  
               Equity in Higher Education Act requirements be submitted to  
               the California Student Aid Commission (CSAC) and posted on  
               its website and requires CSAC to post and maintain a list  
               of institutions claiming exemption and their respective  
               bases for the claim.

          4)   Authorizes the pursuit of appropriate remedies through a  
               civil action for individuals denied equal rights or  
               opportunities on the basis of gender identity, gender  
               expression, or sexual orientation by a postsecondary  
               educational institution claiming religious exemption from  
               Title IX requirements.

          STAFF COMMENTS
          
          1)   Need for the bill.  According to the author, private  
               universities are using federally authorized exemptions from  
               Title IX as a means to discriminate.  The author is  
               concerned that there is no requirement that these  
               institutions disclose their exemption status, and students  
               and staff across the country report learning of the  
               exemption only after being expelled from school or fired  
               from their jobs. Transgender students have reported being  
               denied gender appropriate housing and some have been  
               expelled as a result of revealing their gender identify.  
               Under current law, these students and staff have no  
               recourse. This bill would narrow the religious exemption  
               afforded to these institutions, require disclosure of such  
               exemption, and provide for a private right of action for  
               individuals who claim such discrimination. 









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          2)   Comparison to federal regulations.  This bill statutorily  
               establishes one of three conditions which must be met by an  
               institution per Title IX regulations in order to be granted  
               an exemption under the state Equity in Higher Education  
               Act. Consistent with federal Title IX regulations, it  
               authorizes an exemption for educational programs or  
               activities that prepare students to become ministers of the  
               religion, to enter upon some other vocation of the  
               religion, or to teach theological subjects pertaining to  
               the religion.  This provision would be applicable to any  
               postsecondary educational institution that receives or  
               benefits from state financial assistance or enrolls  
               students who receive state financial aid.
          
               Unlike federal regulations, it does not authorize exemption  
               on the basis that the educational organization demonstrate  
               that it is controlled by a religious organization, or on  
               the basis of requirements that faculty, students or  
               employees of the institution be members of, or espouse  
               belief in, the controlling organization's religion.  
               Institutions controlled by a religious organization would  
               still be eligible for a Title IX exemption based upon the  
               broader conditions outlined in federal regulations.  
          
          3)   Related report.  According to a recent report of the Human  
               Rights Campaign (HRC), Hidden Discrimination: Title IX  
               Religious Exemptions Putting LGBT Students at Risk, the  
               rate of schools seeking a religious exemption from Title IX  
               has increased from one school in 2013 to 43 schools in  
               2015. Since 2013, 56 schools have requested a religious  
               exemption from Title IX provisions.  Thirty-three 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.  According to the HRC, exempted institutions are  
               not required to notify students of such exemption and this  
               type of information is currently only available through a  
               Freedom of Information Act request.  The HRC report  
               recommends that the USDOE amend its regulations to require  
               schools to post specified exemption related information and  
               a statement that all other Title IX protections are still  








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               applicable, and provide exemption related information on  
               the USDOE website, as specified. 
            
          4)   California institutions?  According to the HRC report noted  
               in staff comment #3, since 2013, six California  
               postsecondary educational institutions have requested an  
               exemption under the provisions for religious organizations  
               under Title IX.  These include Biola University, Fresno  
               Pacific University, Simpson University, William Jessup  
               University, John Paul the Great Catholic University, and  
               LABI College.  Based upon information available from the  
               California Student Aid Commission (CSAC), the first four of  
               these institutions currently participate in the Cal Grant  
               Program.  
          
          5)   Federal USDOE guidance/actions.  A federal guidance  
               document issued in 2014 by the Office of Civil Rights  
               (OCR), Questions and Answers on Title IX and Sexual  
               Violence, clarified that the Title IX discrimination  
               prohibition extends to discrimination against transgender  
               and gender non-conforming students.  A January 2016 letter  
               from the United States Department of Education Office of  
               Civil Rights (OCR) to concerned U.S. Senators confirms that  
               in recent years the Department has received an increasing  
               number of requests for religious exemptions from Title IX.  
               The letter also asserts that the OCR is in the process of  
               preparing a basic search tool on its website so that  
               applicants, students, parents, and others can be better  
               informed about which educational institutions have sought  
               and/or received a religious exemption and expects these  
               documents to be posted in the coming months.  

          6)   Double referral.  This bill contains provisions relative to  
               the pursuit of remedies for the denial of equal rights and  
               protection against discrimination through civil action.   
               Bills relative to these types of issues are generally under  
               the purview of the Senate Judiciary Committee.  This bill  
               has also been referred to the Senate Judiciary Committee  
               for the appropriate consideration of these provisions. 
          
          7)   Similar legislation.  AB 1888 (Low) provides that any  
               institution claiming a religious exemption under Title IX  
               is prohibited from participation in the Cal Grant Program.   
               AB 1888 was heard and passed by the Assembly Higher  








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               Education Committee on March 28, 2016, by a vote of 8 to 1  
               and is currently awaiting action in the Assembly  
               Appropriations Committee. 

            SUPPORT
          
          None received.

            OPPOSITION
           
           None received.


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