BILL ANALYSIS                                                                                                                                                                                                    






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          |SENATE RULES COMMITTEE            |                       SB 1146|
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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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