BILL ANALYSIS                                                                                                                                                                                                    





                             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. 









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                                      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  







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          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  







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          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  







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          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  







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          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  







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          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  







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            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  







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          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  







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          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  







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          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 [ . . . ]."  







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          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)

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