BILL ANALYSIS Ó
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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