BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1146 (Lara) - Postsecondary education: nondiscrimination ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 11, 2016 |Policy Vote: ED. 7 - 2, JUD. 5 | | | - 2 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 2, 2016 |Consultant: Jillian Kissee | | | | ----------------------------------------------------------------- This bill does not meet the criteria for referral to the Suspense File. Bill Summary: This bill: (1) narrows the exemption from the Equity in Higher Education Act for postsecondary educational institutions controlled by a religious organization; (2) requires that any claim for exemption under federal or state law be accompanied by specified disclosures; and (3) requires materials from a state or federal agency concerning the granting of the exemption to be submitted to, and posted by, the California Student Aid Commission (CSAC) on its website, as specified. Fiscal Impact: The Department of Justice notes minimal fiscal impact for potential litigation resulting from this bill. SB 1146 (Lara) Page 1 of ? Minor costs to CSAC to collect required information from each postsecondary educational institution that claims a federal Title IX or state exemption and to post a list of these institutions with their respective bases for claiming the exemption on its website. Potential significant costs to affected institutions to develop and disseminate required disclosures as well as update publications, orientation materials, and hiring documents to include disclosures, furnish required information to the CSAC, and address potential lawsuits. These costs would not result in a state fiscal impact as these institutions are private. The Association of Independent California Colleges and Universities notes that 34 campuses would be affected by this bill. 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. It provides a religious exemption from these anti-discrimination laws for educational institutions controlled by religious organizations if the application of the law would not be consistent with the religious tenets of the organization. (Title 20 United States Code, Title 20 § 1681-1688; 34 Code of Federal Regulations § 106.12) According to a recent report of the Human Rights Campaign (HRC), Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk, six California postsecondary educational institutions have requested an exemption under the provisions for religious organizations under Title IX. According to federal regulations, an educational institution that wishes to claim the religious exemption shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of which conflict with a specific tenet of the religious organization. SB 1146 (Lara) Page 2 of ? According to the Office of Civil Rights, an institution is normally considered to be controlled by a religious organization for purposes of a Title IX religious exemption if one or more of the following conditions are 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 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 or enrolls students who receive state student financial aid. Existing law also provides the authority to enforce this Act through a civil action. (Education Code § 66270, 66292.4) 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. (Education Code § 66271) SB 1146 (Lara) Page 3 of ? According to the author's office, this bill would close a loophole that allows private universities to discriminate against students and staff based on their gender identity, gender expression, or sexual orientation. If a private 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 universities that receive Title IX exemptions do not have to disclose their status to students or staff. Many are completely unaware of the exemption and what the potential consequences would be in the event their sexual orientation or gender identity did not align with the universities' values. Proposed Law: This bill: 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 become ministers of the religion, to enter upon some other vocation of the religion, or to teach theological subjects pertaining to the religion. Requires institutions claiming a religious exemption under Title IX or the Equity in Higher Education Act to disclose in various ways to students, faculty, and employees the basis for claiming the exemption and submit to the CSAC copies of all materials submitted to, and received from, a state or federal agency concerning the granting of the exemption. The CSAC is required to collect the information and post and maintain a list on its website of the institutions claiming exemption and their respective bases for claiming. Provides that an educational institution that is controlled by a religious organization and has participated in the Cal Grant Program continuously since January 1, 2016, shall not lose its eligibility to participate in the Cal Grant Program as a result of its failure to comply with the provisions of this chapter. SB 1146 (Lara) Page 4 of ? Related 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 pending in the Assembly Appropriations Committee. Staff Comments: Existing state and federal law exempts an educational institution that is controlled by a religious organization from the Higher Education Equity Act (Act) and Title IX, respectively, if its application would not be consistent with the religious tenets of the organization. This bill narrows state law in its exemption of the Act, which is also more restrictive than federal Title IX, by limiting exemptions to only those 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. To the extent the narrower eligibility for an exemption results in lawsuits against the state for those institutions that no longer qualify, the state could incur costs. However, the Department of Justice anticipates minor costs related to this bill at this time. -- END --