BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 1146 (Lara) - Postsecondary education: nondiscrimination
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|Version: April 11, 2016 |Policy Vote: ED. 7 - 2, JUD. 5 |
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|Urgency: No |Mandate: No |
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|Hearing Date: May 2, 2016 |Consultant: Jillian Kissee |
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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
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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
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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
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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
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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.
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