BILL ANALYSIS                                                                                                                                                                                                    



          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. 








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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.









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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)   









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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.








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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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