BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1146 (Lara)
Version: April 11, 2016
Hearing Date: April 19, 2016
Fiscal: Yes
Urgency: No
RD
SUBJECT
Postsecondary education: nondiscrimination
DESCRIPTION
Existing state law and federal law, the Equity in Higher
Education Act and Title IX, prohibit a person from being
subjected to discrimination on the basis of certain protected
characteristics, such as sex, in any program or activity that
receives, or benefits from, state or federal financial
assistance or enrolls students who receive financial aid. These
laws exempt educational institutions that are controlled by a
religious organization if the application would not be
consistent with the religious tenets of that religion.
This bill would limit the state exemption for religious
postsecondary educational institutions to only those
institutions that provide education programs or activities to
prepare students to become ministers of the religion, enter upon
some other religious vocation, or teach theological subjects
pertaining to the religion. This bill would also require
exempted institutions to comply with certain disclosure
requirements and to submit materials and information related to
the request and granting of an exemption from these
anti-discrimination laws to the California Student Aid
Commission. Lastly, this bill would authorize any individual
who is denied equal rights or opportunities on the basis of
gender identity, gender expression, or sexual orientation by a
Title IX exempted institution, a specified civil remedy for any
intentional violations of this bill.
SB 1146 (Lara)
Page 2 of ?
BACKGROUND
Since the 1970s, both federal and state laws have sought to
prevent discrimination in educational institutions that receive
public monies on the basis of a person's sex. As a matter of
federal law, Title IX of the Education Amendments of 1972 to the
Civil Rights Act of 1964 prohibits educational institutions that
receive federal financial support from engaging in sex-based
discrimination. Because federal law does not expressly protect
students on the basis of sexual orientation or gender identity,
the U.S. Department of Education (U.S. DOE) Office of Civil
Rights (OCR) issued a "significant guidance document" on April
29, 2014, that in part clarified that Title IX also protects
against discrimination based on actual or perceived sexual
orientation or gender identity. (OCR, Questions and Answers on
Title IX and Sexual Violence (Apr. 2014)
[as of Apr. 9, 2016].)
Similarly, as a matter of state law, California provides a host
of nondiscrimination statutes that generally seek to ensure
equal opportunities in state educational programs by prohibiting
discrimination against protected classes of individuals. (See
e.g. Ed. Code Sec. 200 et seq., entitled Educational Equity; see
also 5 C.C.R. Sec. 4900 et seq. for regulations that seek to
ensure compliance with federal and state nondiscrimination
laws.) With respect to higher education institutions,
California's Equity in Higher Education Act prohibits a person
from being subjected to discrimination on the basis of certain
characteristics 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. (Ed. Code Sec. 66270 et seq.) These protected
bases include disability, gender, gender identity, gender
expression, nationality, race or ethnicity, religion, sexual
orientation, or any other characteristic that is listed under
Section 11135 of the Government Code prohibiting discrimination
in state or state-funded programs or activities on certain bases
(such as sex), or any other characteristic contained in the
Penal Code statute prohibiting hate crimes. (Ed. Code Sec.
66270.)
That being said, both state and federal law provide a religious
exemption from these anti-discrimination laws for educational
institutions controlled by religious organizations if the
SB 1146 (Lara)
Page 3 of ?
application of the law would not be consistent with the
religious tenets of the organization. (See 20 U.S.C. Sec.
1681(a)(3), Ed. Code Sec. 66271.) According to a report by the
Human Rights Commission (HRC), religious educational
institutions have increasingly requested waivers under the Title
IX exemption in order to be exempted from treating LGBT students
equally. Specifically, HRC found that "[t]he rate of schools
seeking exemptions has increased dramatically from only one
school in 2013 to more than 43 schools in 2015." Amongst HRC's
key findings were that more than half the states (26) have at
least one school that has requested an exemption; 56 schools in
states across the country have requested exemptions; 33 received
exemptions as it pertains to protecting students on the basis of
gender identity; 23 received exemptions as it pertains to
protecting students on the basis of sexual orientation; and
schools most commonly requested exemptions in relation to
housing, access to facilities, and athletics. These exemptions
can also apply, however, in other areas, such as financial aid.
(HRC, Hidden Discrimination: Title IX Religious Exemptions
Putting LGBT Students at Risk (2015) p. 6
[as of Apr. 9,
2016].) According to this report, California and Texas are home
to the greatest number of schools seeking exemptions in the
Western U.S., with six apiece. (Id. at p. 6.)
The HRC report warns that this trend could lead to LGBT students
finding themselves "enrolled at schools that are granted the
legal right to discriminate against them partway through their
degree program. Students should have the opportunity to make
determinations about school attendance based on full information
regarding a university's ability to legally discriminate against
the student." Notably, in January, the DOE reportedly announced
a "decision to publish a searchable database in the coming
months of educational institutions [that] have sought and/or
received an exemption from federal civil rights law in order to
discriminate against LGBT students." (Peters, HRC, Department
of Education Answers HRC's Call for Greater Transparency on
Anti-LGBT Religious Exemption
[as of Apr. 9, 2016].)
In response to these issues, this bill seeks to: (1) narrow the
Equity in Higher Education Act's exemption for religious
postsecondary educational institutions; (2) require exempted
institutions to comply with certain disclosure requirements and
SB 1146 (Lara)
Page 4 of ?
to submit materials and information related to the request and
granting of either a state or federal exemption to the
California Student Aid Commission; and (3) provide any
individual who is denied equal rights or opportunities on the
basis of gender identity, gender expression, or sexual
orientation by a postsecondary educational institution that
claims a Title IX exemption, a specified civil remedy for any
intentional violations of this bill.
This bill was heard in the Senate Education Committee on April
6, 2016, and approved on a vote of 7-2.
CHANGES TO EXISTING LAW
Existing federal law , Title IX, provides that no person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance, except as provided. (20 U.S.C.
Sec. 1681(a).) Title IX provides for various exemptions,
including for fraternities and sororities, military
institutions, traditional male or female institutions, and
institutions controlled by religious organizations. (20 U.S.C.
Secs. 1681(a)(1)-(9).) Specifically, Title IX exempts any
educational institution which is controlled by a religious
organization if the application of this law would not be
consistent with the religious tenets of such organization. (20
U.S.C. Sec. 1681(a)(3).)
Existing federal law provides, generally, that for these
purposes an educational institution means any public or private
preschool, elementary, or secondary school, or any institution
of vocational, professional, or higher education. (20 U.S.C.
Sec. 1681(c).)
Existing federal regulations provides that an educational
institution which wishes to claim the Title IX exemption, above,
shall do so by submitting in writing to the Assistant Secretary
for Civil Rights of the Department of Education a statement by
the highest ranking official of the institution, identifying the
provisions of this part which conflict with a specific tenet of
the religious organization. (34 C.F.R. Sec. 106.12(b).)
Existing case law holds that an individual has a private right
of action under Title IX to enforce its prohibition of
SB 1146 (Lara)
Page 5 of ?
intentional sex discrimination (Cannon v. University of Chicago
(1979) 441 U.S. 677, 690-693) and that this private right of
action includes actions for monetary damages (Franklin v.
Gwinnett County Public Schools (1992) 503 U.S. 60, 76).
Existing state law , the Equity in Higher Education Act,
prohibits 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 listed under Section 11135 of
the Government Code prohibiting discrimination in state or
state-funded programs or activities on certain bases (including
sex), or any other characteristic contained in the Penal Code
statute prohibiting 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. (Ed. Code Sec. 66270.)
Existing state law , Section 11135 of the Government Code,
prohibits any person in this state from being unlawfully denied,
on the basis of race, national origin, ethnic group
identification, religion, age, sex, sexual orientation, color,
genetic information, or disability, full and equal access to the
benefits of, or the unlawful discrimination under, any program
or activity that is conducted, operated, or administered by the
state or by any state agency, is funded directly by the state,
or receives any financial assistance from the state. (Gov. Code
Sec. 11135(a).) Existing state law provides that this
protection also applies to any perception that a person has any
of those characteristics or that the person is associated with a
person who has, or is perceived to have, any of those
characteristics. (Gov. Code Sec. 11135(f).)
Existing state law , in relevant part, provides that Section
11135 et seq. and its implementing regulations may be enforced
by a civil action for equitable relief, which may be independent
of any other rights and remedies. (Gov. Code Sec. 11139.)
Existing state law provides it is the intent of the Legislature
that the Equity in Higher Education Act be interpreted as
consistent with various laws, including Government Code Section
11135 et seq. (prohibiting discrimination on specified bases,
such as sex, sexual orientation and gender identity, in state or
state-funded programs or activities) and Title IX under federal
law, except where this chapter may grant more protections or
SB 1146 (Lara)
Page 6 of ?
impose additional obligations, and that the remedies provided
herein shall not be the exclusive remedies, but may be combined
with remedies that may be provided by the above statutes. (Ed.
Code Sec. 66252.)
Existing state law provides that the Equity in Higher Education
Act may be enforced through a civil action. (Ed. Code Sec.
66292.4.)
Existing state law provides that the Equity in Higher Education
Act shall not apply to an educational institution that is
controlled by a religious organization if the application would
not be consistent with the religious tenets of that
organization. (Ed. Code Sec. 66271.)
This bill would, instead, provide that the exemption to the
Equity in Higher Education Act applies only to educational
programs or activities offered by an educational institution
that is controlled by a religious organization to 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, if the application of this Act would
not be consistent with the religious tenets of that
organization.
This bill would require institutions claiming a religious
exemption under Title IX or the Equity in Higher Education Act
to comply with specified disclosure requirements. Among other
things, disclosure must be provided:
to current and prospective students, faculty, and employees,
of the basis for claiming such exemption;
in written materials sent to prospective students seeking
admission;
to faculty members, administrative staff, and support staff
annually, as specified, and to new employees upon hiring; and
in any institutional publication that sets forth rules,
regulations, procedures and standards of conduct for the
institution.
This bill requires that copies of materials and information
submitted to, and received from, a state or federal agency
concerning the granting of a Title IX or Equity in Higher
Education Act exemption be provided to the California Student
Aid Commission (CSAC). This bill also requires CSAC to post and
maintain on its Web site a list of institutions that have
claimed the exemption and their respective bases for claiming
SB 1146 (Lara)
Page 7 of ?
the exemption.
This bill would provide that any individual who is denied equal
rights or opportunities on the basis of gender identity, gender
expression, or sexual orientation by a postsecondary educational
institution that claims an exemption pursuant to Title IX, as
specified, may seek appropriate remedies both at law and in
equity through a civil action, including the award of monetary
damages, for intentional violations of the Equity in Higher
Education Act.
This bill would provide that nothing in the provision, above,
shall be construed to impair or impede any other rights, causes
of action, claims, or defenses available under other law. This
bill would specify that the remedies provided, above, are
cumulative with any other remedies available under other laws.
This bill would specify that it shall not be construed to alter
how state financial assistance is granted or denied to any
postsecondary educational institution or students attending that
institution.
This bill would contain a severability clause.
COMMENT
1. Stated need for the bill
According to the author:
At the federal level, Title IX prohibits discrimination based
on gender identity and gender nonconformity in education
programs and activities that receive any federal funding.
However, there is a little known loophole that private
universities use to avoid complying with Title IX. If a
university believes compliance with Title IX would conflict
with their values[,] they may submit an exemption request to
the U.S. Department of Education. The Department has very
little discretion and most requests are granted. Universities
that receive an exemption essentially have a license to
discriminate and students and staff have no recourse.
[Moreover, t]he universities that receive Title IX exemptions
do not have to disclose their status to students or staff.
Many [students and staff] are completely unaware of the
SB 1146 (Lara)
Page 8 of ?
exemption and what the potential consequences would be in the
event their sexual orientation or gender identity did not
align with the universities values. Students and staff across
the country have reported finding out about the exemption,
only after being expelled from school or fired from their job.
Recently at a university in southern California, a student
took a leave of absence and during his time away came out as
gay on social media. When it was time to return to school, the
university did not want to readmit him. Transgender students
have also reported being denied access to gender appropriate
housing and some have been expelled as a result of their
revealing their gender identity.
Currently these students and staff have no recourse. Higher
education is a major investment. Students who are expelled or
are forced to leave because of harassment simply because of
the sexual or gender identity stand to lose thousands of
dollars and years that they have spent on their education. [
. . . ]
SB 1146 would require universities who are granted a Title IX
exemption to disclose that information to the California
Student Aid Commission and disseminate the information to
students and staff. The bill would also allow an individual
that has encountered discrimination at a school claiming a
Title IX exemption to pursue a remedy through a civil action.
2. Bill narrows state religious exemption to further protect
students against discrimination on protected bases
Federal law, Title IX of the Education Amendments of 1972 to the
Civil Rights Act of 1964 provides that "[n]o person in the
United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any educational program or activity
receiving federal financial assistance." Similarly,
California's Equity in Higher Education Act prohibits a person
from being subjected to discrimination on the basis of specified
characteristics, including sex, sexual orientation, gender,
gender identity, or gender expression, in any program or
activity conducted by a postsecondary educational institution
that receives, or benefits from, state financial assistance or
enrolls pupils who receive state student financial aid. (Ed.
Code Sec. 66270.) However, and at the heart of this bill, both
SB 1146 (Lara)
Page 9 of ?
state and federal law provide educational institutions
controlled by religious organizations with an exemption from
these laws if the application of the law would not be consistent
with the religious tenets of the organization. (See 20 U.S.C.
Sec. 1681(a)(3), Ed. Code Sec. 66271.)
Under federal regulations, to receive the Title IX exemption, an
educational institution must submit a written application to the
Assistant Secretary of Civil Rights in the Department of
Education and identify the Title IX provisions which conflict
with a specific tenet of the religious organization. (34 C.F.R.
Sec. 106.12(b).) According to the Office of Civil Rights (OCR),
an institution is normally considered to be controlled by a
religious organization (and, thus, exempt) if any of the
following is true:
1)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; or
2)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; or,
3)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. (OCR, Religious
Exemption
[as of Apr. 9, 2016].)
This bill would now narrow the state religious exemption so that
it applies to religious postsecondary educational institutions
that provide education programs or activities to prepare
students to: (1) become ministers of the religion; (2) enter
upon some other religious vocation; or (3) teach theological
subjects pertaining to the religion. While this exemption would
be narrower than the federal Title IX exemption, described
above, and while the First Amendment protects the freedom of
religion, individuals also have the right to be free from
SB 1146 (Lara)
Page 10 of ?
discrimination on the basis of protected classes, particularly
in schools receiving state funding. As a matter of public
policy, this bill would arguably be consistent with longstanding
efforts by this state to strengthen anti-discrimination laws to
better protect individuals from discrimination on the basis of
sex, sexual orientation, gender, gender identity, and gender
expression.
As stated by the author, "[c]lassrooms are supposed to be places
where students feel safe and can learn without fear of
discrimination or harassment. California has established strong
protections for the LGBTQ community and private universities
should not be able to use faith as an excuse to discriminate and
avoid complying with state laws."
3. Remedies under this bill seek to protect students who
suffer discrimination in Title IX-exempted postsecondary
educational institutions and are cumulative
While Title IX does not expressly provide for a civil action,
case law recognizes both that Title IX can be enforced by way of
an implied private right of action and that monetary damages are
available to prevent intentional discrimination. In contrast,
existing state law expressly provides that the Equity in Higher
Education Act can be enforced by way of a private right of
action. (Ed. Code Sec. 66292.4.) Additionally, as a matter of
state law, and independent from any other rights and remedies,
an action for equitable relief can be brought under Section
11135 et seq. of the Government Code, which prohibits
discrimination in any state or state-funded program or activity
on the bases of certain characteristics, such as sex (including
gender, gender identity, and gender expression) or sexual
orientation. (See Gov. Code Secs. 11135(a) and 11139.)
This bill would now provide prospective and current students and
staff the right to receive various disclosures that would alert
them to a school's religious exemption under either Title IX or
the Equity in Education Act. Even still, this bill would
provide that any individual who is denied equal rights or
opportunities specifically on the basis of gender identity,
gender expression, or sexual orientation by a postsecondary
educational institution that claims an exemption pursuant to
Title IX has the right to seek appropriate remedies both at law
and in equity through a civil action, including the award of
monetary damages, for intentional violations of the Equity in
SB 1146 (Lara)
Page 11 of ?
Higher Education Act. This new right is intended to be
cumulative with any other remedies available under other laws,
and is not to be construed to impair or impede any other rights,
causes of action, claims, or defenses available under other
laws, such as those referenced above.
While existing law does provide for various civil remedies under
both Title IX and state law, those remedies would presumably not
apply where a school has been granted a religious exemption and
proceeds to discriminate against its students or staff on the
basis of sexual orientation, gender identity, or gender
expression. However, where an exemption is provided under Title
IX, but not state law, and a postsecondary educational
institution intentionally discriminates against a person on the
basis of sexual orientation, gender identity, or gender
expression (i.e., while still receiving or benefiting from state
financial assistance), this bill would ensure that the victim of
that discrimination can seek a remedy against the school under
the Equity in Higher Education Act.
4. Opposition
In opposition the California Catholic Conference (CCC) writes
that while the state can protect against invidious
discrimination, it must do so in a way that does not
simultaneously abridge rights guaranteed by the U.S.
Constitution. "In enacting Title IX, Congress specifically
recognized that there can in some instances be conflict between
the sincerely-held tenets of religious organizations that
control some postsecondary institutions, and efforts to confer
legally-protected status to certain types of characteristics or
conduct. [ . . . ] Accordingly, it is inappropriate to impose an
abridgement of federal statutory rights, by re-writing the
definition of institutions to whom the Equity in Higher
Education Act would now apply."
CCC also argues that this bill is "fraught with vagueness that
virtually guarantees it will be years, if not decades, before
any institution in California can actually develop a clear idea
of what it means." CCC cites, for example, that the bill
narrows the exemption for institutions "controlled by a
religious institution" to those that offer programs "to prepare
students to become ministers of religion. This necessarily-and
improperly-injects state regulation into the question of how to
define who is a minister of a church [ . . . ]."
SB 1146 (Lara)
Page 12 of ?
Finally, CCC argues that this bill "raises serious concerns over
potential violations of the Equal Protection Clause and
provisions of the Due Process" by creating a civil cause of
action for discrimination on the grounds of gender identity,
gender expression, or sexual orientation, "even where that
conduct is compliant with federal law. [ . . . ] This coercive
mandate to waive federally-protected statutory and
constitutional rights is simply indefensible."
Support : Equality California; Los Angeles LGBT Center;
Transgender Law Center
Opposition : California Catholic Conference
HISTORY
Source : Author
Related Pending Legislation : AB 1888 (Low, 2016) would prohibit
an institution participating in the Cal Grant Program from
discriminating against a student or employee on the basis of a
protected class. This bill is currently in the Assembly
Appropriations Committee.
Prior Legislation : None Known
Prior Vote : Senate Education Committee (Ayes 7, Noes 2)
**************