BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1146|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
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THIRD READING
Bill No: SB 1146
Author: Lara (D), et al.
Amended: 5/4/16
Vote: 21
SENATE EDUCATION COMMITTEE: 7-2, 4/6/16
AYES: Liu, Block, Hancock, Leyva, Mendoza, Monning, Pan
NOES: Huff, Vidak
SENATE JUDICIARY COMMITTEE: 5-2, 4/19/16
AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/16
AYES: Lara, Beall, Hill, McGuire, Mendoza
NOES: Bates, Nielsen
SUBJECT: Postsecondary education: nondiscrimination
SOURCE: Author
DIGEST: This bill narrows the exemption from the Equity in
Higher Education Act for postsecondary educational institutions
controlled by a religious organization (consistent with federal
Title IX regulations), requires that any claim for exemption
under federal or state law be accompanied by specified
disclosures, requires related materials to be submitted to, and
posted by, the California Student Aid Commission (CSAC) on its
Web site, as specified, and prohibits these provisions from
being construed to alter the granting or denying of financial
assistance, as specified.
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ANALYSIS:
Existing federal law:
1)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. (Title 20 United States Code, Title 20 §
1681-1688)
2)Provides that an institution will be considered to be
controlled by a religious organization for purposes of a Title
IX religious exemption if one or more of the following
conditions is 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 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.
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)
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Existing state law:
1)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 assistance or
enrolls pupils who receive state student financial aid.
(Education Code § 66270)
2)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)
3)Declares the Legislature's intent that the Act be interpreted
as consistent with other specified federal and state laws,
including Title IX, except where the Act grants more
protections or imposes additional obligations. (Education
Code § 66252)
This bill:
1)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 do any of the following:
a) Become ministers of the religion.
b) Enter upon some other religious vocation.
c) Teach theological subjects pertaining to the religion.
2)Requires that institutions claiming a religious exemption
under Title IX or the Equity in Higher Education Act comply
with disclosure requirements. Specifically it:
a) Requires disclosure to current and prospective students,
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faculty, and employees, of the basis for claiming such
exemption.
b) Requires display of such disclosure in a prominent
campus or school site location.
c) Requires inclusion of such disclosure in written
materials sent to prospective students seeking admission.
d) Requires that disclosure be provided as part of
orientation programs for new students, as specified.
e) Requires that disclosure be provided to faculty members,
administrative staff, and support staff annually, as
specified, and to new employees upon hiring.
f) Requires that disclosure be included in any
institutional publication that sets forth rules,
regulations, procedures and standards of conduct for the
institution.
3)Requires that materials and information related to the request
and granting of an exemption from Title IX or the Equity in
Higher Education Act requirements be submitted to the
California Student Aid Commission (CSAC) and posted on its Web
site and requires CSAC to post and maintain a list of
institutions claiming exemption and their respective bases for
the claim.
4)Provides for the continued participation in the CalGrant
program for an institution that fails to comply with these
provisions if the following conditions are met:
a) It is controlled by a religious organization.
b) It has participated in the Cal Grant program
continuously since January 1, 2016.
Comments
1)Need for the bill. According to the author, private
universities are using federally authorized exemptions from
Title IX as a means to discriminate. The author is concerned
that there is no requirement that these institutions disclose
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their exemption status, and students and staff across the
country report learning of the exemption only after being
expelled from school or fired from their jobs. Transgender
students have reported being denied gender appropriate housing
and some have been expelled as a result of revealing their
gender identify. Under current law, these students and staff
have no recourse. This bill narrows the religious exemption
afforded to these institutions, and requires disclosure of
such exemption.
2)Comparison to federal regulations. This bill statutorily
establishes one of three conditions which must be met by an
institution per Title IX regulations in order to be granted an
exemption under the state Equity in Higher Education Act.
Consistent with federal Title IX regulations, it authorizes an
exemption for 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. This provision would be
applicable to any postsecondary educational institution that
receives or benefits from state financial assistance or
enrolls students who receive state financial aid.
Unlike federal regulations, it does not authorize exemption on
the basis that the educational organization demonstrate that
it is controlled by a religious organization, or on the basis
of requirements that faculty, students or employees of the
institution be members of, or espouse belief in, the
controlling organization's religion. Institutions controlled
by a religious organization would still be eligible for a
Title IX exemption based upon the broader conditions outlined
in federal regulations.
3)Related report. According to a recent report of the Human
Rights Campaign (HRC), Hidden Discrimination: Title IX
Religious Exemptions Putting LGBT Students at Risk, the rate
of schools seeking a religious exemption from Title IX has
increased from one school in 2013 to 43 schools in 2015. Since
2013, 56 schools have requested a religious exemption from
Title IX provisions. Thirty-three have received an exemption
from the law as it pertains to protecting students on the
basis of gender identity and 23 have obtained an exemption
based on laws pertaining to protecting students on the basis
of sexual orientation. Schools most commonly requested
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exemptions from provisions of the law relating to housing,
access to facilities, and athletics. According to the HRC,
exempted institutions are not required to notify students of
such exemption and this type of information is currently only
available through a Freedom of Information Act request. The
HRC report recommends that the USDOE amend its regulations to
require schools to post specified exemption related
information and a statement that all other Title IX
protections are still applicable, and provide exemption
related information on the USDOE website, as specified.
4)California institutions? According to the HRC report noted in
comment #3, since 2013, six California postsecondary
educational institutions have requested an exemption under the
provisions for religious organizations under Title IX. These
include Biola University, Fresno Pacific University, Simpson
University, William Jessup University, John Paul the Great
Catholic University, and LABI College. Based upon information
available from the California Student Aid Commission (CSAC),
the first four of these institutions currently participate in
the Cal Grant Program.
5)Federal USDOE guidance/actions. A federal guidance document
issued in 2014 by the Office of Civil Rights (OCR), Questions
and Answers on Title IX and Sexual Violence, clarified that
the Title IX discrimination prohibition extends to
discrimination against transgender and gender non-conforming
students. A January 2016 letter from the United States
Department of Education Office of Civil Rights (OCR) to
concerned U.S. Senators confirms that in recent years the
Department has received an increasing number of requests for
religious exemptions from Title IX. The letter also asserts
that the OCR is in the process of preparing a basic search
tool on its website so that applicants, students, parents, and
others can be better informed about which educational
institutions have sought and/or received a religious exemption
and expects these documents to be posted in the coming months.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
The Senate Appropriations Committee notes minor costs to CSAC to
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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.
There are also potentially 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.
SUPPORT: (Verified 5/18/16)
None received
OPPOSITION: (Verified 5/18/16)
None received
Prepared by:Kathleen Chavira / ED. / (916) 651-4105
5/19/16 8:27:44
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