BILL ANALYSIS                                                                                                                                                                                                    



                                                                    SB 1146


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          Date of Hearing:  June 21, 2016 


                       ASSEMBLY COMMITTEE ON HIGHER EDUCATION


                                 Jose Medina, Chair


          SB  
          1146 (Lara) - As Amended June 13, 2016


          [Note:  This bill is double referred to the Assembly Judiciary  
          Committee and will be heard as it relates to issues under its  
          jurisdiction.]


          SENATE VOTE:  26-13


          SUBJECT:  Postsecondary education:  nondiscrimination


          SUMMARY:  Would narrow the religious exemption contained in the  
          Equity in Higher Education Act (Act), an Act which applies only  
          to institutions that benefit from public funds; and, would  
          require institutions that receive California public funds and  
          that claim an exemption from state or federal discrimination  
          laws and regulations, as specified, to provide public  
          disclosures.  Specifically, this bill:  


          1)Provides that the Act, which applies only to institutions that  
            receive public funds, does not apply to educational programs  
            or activities, as outlined below, offered by an institution  
            that is controlled by a religious organization, if the  
            application of the Act would not be consistent with the  
            religious tenets of that organization:








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             a)   Programs or activities to prepare students to become  
               ministers of the religion.


             b)   Programs or activities to enter upon some other vocation  
               of the religion.


             c)   Programs or activities to teach theological subjects  
               pertaining to the religion. 


          2)Specifies that nothing in the aforementioned religious  
            exemption shall limit a religious institution from requiring a  
            student to participate in religiously based curriculum or  
            activities as a condition of his or her attendance or  
            graduation.


          3)Requires postsecondary educational institutions, if they  
            receive public funds in this state, that claim an exemption  
            from the federal Title IX of the Education Amendments of 1972  
            or the California non-discrimination requirements of the Act  
            to disclose to current and prospective students, faculty  
            members, and employees the basis for claiming the exemption,  
            as follows:


             a)   Requires the disclosure to be displayed in a prominent  
               location of the campus or school site. Defines "prominent  
               location" to mean that location, or those locations, in the  
               main administrative building or other area where notices  
               regarding the institution's rules, regulations, procedures,  
               and standards of conduct are posted;


             b)   Requires the disclosure to be included in written  








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               materials sent to prospective students seeking admission to  
               the postsecondary educational institution; 


             c)   Requires the disclosure to be provided as part of  
               orientation programs conducted for new students at the  
               beginning of each quarter, semester, or summer session, as  
               applicable; 


             d)   Requires the disclosure to be provided to each faculty  
               member, member of the administrative staff, and member of  
               the support staff at the beginning of the first quarter or  
               semester of each school year; and to be provided to each  
               new employee upon hire;


             e)   Requires the disclosure to be included in any  
               publication of the institution that sets forth the  
               comprehensive rules, regulations, procedures, and standards  
               of conduct for the institution.


          4)Requires postsecondary educational institutions that receive  
            public funds in this state and that claim an exemption from  
            the federal Title IX of the Education Amendments of 1972 or  
            California non-discrimination laws to submit to the California  
            Student Aid Commission (CSAC) copies of all materials  
            submitted to, and received from, a state or federal agency  
            concerning the granting of the exemption.


          5)Requires CSAC to collect the aforementioned information and  
            post and maintain a list on the commission's Internet Web site  
            of the institutions that have claimed the exemption with their  
            respective basis for claiming the exemption.


          6)Provides that the provisions of the Act are severable if any  








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            portion or its application is held invalid.


          EXISTING LAW:  Numerous state and federal laws exist to prevent  
          discrimination in public programs, programs that receive or  
          benefit from public funding, and in K-12 and higher education.   
          These laws are, in some cases, inconsistent.  A specific  
          exemption for religious entities is contained in some  
          nondiscrimination laws.  What follows is a non-exhaustive list  
          of relevant existing laws related to discrimination, public  
          funding, and higher education.     


          1)Federal law establishes Title IX of the Education Amendments  
            of 1972 (Title IX: Title 20 U.S.C. Sections 1681-1688) to  
            prohibit discrimination, on the basis of sex, in educational  
            programs or activities receiving federal financial assistance  
            (including grants and loans to students).   Exemptions are  
            provided, including for fraternities and sororities, military  
            institutions, traditional male or female institutions, and  
            institutions controlled by religious organizations. For  
            purposes of the Title IX religious exemption, an institution  
            will be considered to be controlled by a religious  
            organization 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; or


             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; or,








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             c)   Its charter and catalog, or other official publication,  
               contains an 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. (34  
               C.F.R. Section 106.12)


          2)The California Equity in Education/Higher Education Act  
            (Equity Acts) (Education Code Sections 200 et seq. and 66270  
            et seq.) apply to educational institutions that receive public  
            funds and prohibits those institutions, among other  
            protections, from discriminating against a person on the basis  
            of any of California's protected classes (disability, gender,  
            gender identity, gender expression, nationality, race or  
            ethnicity, religion, sexual orientation, or any other  
            characteristic that is contained in the definition of hate  
            crimes).  The Equity Acts can be enforced through a civil  
            action.


            According to Legislative history, the Equity Acts were first  
            adopted in 1982, and were based on federal Title IX.  At the  
            time of adoption, the Equity Acts applied only to gender  
            discrimination.  In 1982, an exemption was provided,  
            consistent with Title IX, 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. 


            In the time since adoption in 1982, the Equity Acts have been  
            expanded to encompass all of California's protected classes.   
            The religious exemptions, however, were not amended.  Today,  








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            the Equity Acts appear to provide a religious institution the  
            right to accept public funds and discriminate on the basis of  
            any of California's protected classes, including race,  
            ethnicity, sexual orientation, disability, etc.  


          3)Federal Title VI (42 U.S.C. Section 2000d et seq.) was enacted  
            as part of the Civil Rights Act of 1964. It prohibits  
            discrimination on the basis of race, color, and national  
            origin in programs and activities receiving federal financial  
            assistance. If a recipient of federal assistance is found to  
            have discriminated and voluntary compliance cannot be  
            achieved, the federal agency providing the assistance is  
            directed to either initiate fund termination proceedings or  
            refer the matter to the Department of Justice for appropriate  
            legal action. Aggrieved individuals may file administrative  
            complaints with the federal agency that provides funds to a  
            recipient, or the individuals may file suit for appropriate  
            relief in federal court. 


            Title VI does not contain an exemption for religious  
            organizations or religious educational institutions that  
            receive public funds.  


          4)California Government Code Section 11135, which was enacted in  
            1977 and appears to be based on Federal Title VI, prohibits  
            any program or activity that is operated by the state  
            directly, or funded directly by the state, or an organization  
            that receives financial assistance from the state, from  
            unlawfully denying, on the basis of race, national origin,  
            ethnic group identification, religion, age, sex, sexual  
            orientation, color, genetic information, or disability, any  
            person full and equal access to the benefits of these programs  
            or activities.  California law provides that these rights may  
            be enforced by a civil action for equitable relief, which may  
            be independent of any other rights and remedies.  









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            Similar to Title VI, California statute does not provide for a  
            religious exemption.  Currently, Govt. Code 11135 is  
            inconsistent with the Equity Acts, in regards to public funds  
            used for education, and it is unclear if the Legislature  
            intended to provide a religious exemption to allow religious  
            institutions to receive public funds and discriminate on the  
            basis of gender (which the Act(s) covered at the time of the  
            adoption of the exemption) or on the basis of all of  
            California's protected classes (which the Equity Acts have  
            been expanded to include).    


          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee:


          1)The Department of Justice notes minimal fiscal impact for  
            potential litigation resulting from this bill. 

          2)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.  



          3)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.










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          COMMENTS:  Background.  According to the Human Rights Campaign  
          (HRC) report Hidden Discrimination: Title IX Religious  
          Exemptions Putting LGBT Students at Risk, the Civil Rights Act  
          of 1964 prohibits discrimination in public educational  
          institutions on the basis of race, color, national origin, sex,  
          and religion.  However, Title IV of the Civil Rights Act, which  
          prohibits public and private educational institutions from  
          accepting federal funding for noncompliance, is limited to race,  
          color and national origin.  Title VII of the Civil Rights Act  
          prohibits discrimination, including on the basis of sex, in  
          employment.  According to HRC, courts have increasingly allowed  
          claims of employment discrimination based on an employee's  
          sexual orientation or gender identity under Title VII sex  
          discrimination provisions.   





          Title IX was enacted to protect students from discrimination on  
          the basis of sex.  An exemption is provided for religious  
          colleges that fall within specified guidelines. Federal guidance  
          issued in 2014 clarified that the Title IX discrimination  
          prohibition "extends to claims of discrimination based on gender  
          identity or failure to conform to stereotypical notions of  
          masculinity or femininity." In response to the USDE guidance, a  
          number of religious institutions have applied for exemption to  
          Title IX.





          According to the HRC report, six California colleges have  
          requested a Title IX exemption from the USDE.  Based on  
          information available from CSAC, four of these institutions  








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          participate in the Cal Grant Program: Biola University, Fresno  
          Pacific University, Simpson University, and William Jessup  
          University.


          In requesting approval of an exemption to Title IX, Biola  
          University cites the governing board's "Statement on  
          Transsexualism and Transgenderism" that provides, in part, Biola  
          University, in employment and student life "will not support  
          persistent or exaggerated examples of cross-dressing that are  
          grounded in the fundamental rejection of biological birth sex,  
          or other actions or expressions that are deliberately discordant  
          with birth sex, or advocacy of such viewpoints that are  
          inconsistent with the University's theological positions."   
          Biola further notes that any individual who violates Biola's  
          Standards of Conduct is subject to discipline, including  
          possible dismissal from the university.    


          Fresno Pacific University's student handbook outlines the Values  
          and Behavioral Standards that all students are required to abide  
          by, and states, in part "Certain sexual behaviors are  
          prohibited.  These include but are not limited to: fornication,  
          adultery, and same-sex romantic relations." In requesting USDE  
          grant an exemption, the university writes "Fresno Pacific  
          University has admitted openly gay students who are willing and  
          choose to live in accordance with the Confession of Faith and  
          the Fresno Pacific Idea.  However, in keeping with our biblical  
          beliefs regarding the morality of actions, we cannot in good  
          conscience support or encourage an individual to live in  
          conflict with biblical principles in any area, including gender  
          and gender identity." 


          According to the Human Rights Campaign report, nationwide 56  
          schools have requested an exemption, 33 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  








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          sexual orientation.  Schools most commonly requested exemptions  
          from provisions of the law relating to housing, access to  
          facilities, and athletics. 


          Purpose of this bill.  The author notes that the religious  
          exemption contained in California's Equity Act is much more far  
          reaching than the federal Title IX exemption.  Universities that  
          receive California public funds do not have to apply or report  
          to any California entity in order to fall under the exemption.   
          According to the Association of Independent Colleges and  
          Universities (AICCU) thirty-one (31) of their institutional  
          members reported that they participate in the Cal Grant Program  
          and operate under the California exemption.  As there is no  
          requirement for approval of an exemption, or related reporting,  
          it is unclear what aspects of the Equity Act, or its  
          non-discrimination requirements, with which these institutions  
          do not comply.   


          According to the author, "classrooms are supposed to be places  
          where students feel safe and can learn without fear of  
          discrimination or harassment. California has established some of  
          the strongest protections for the LGBT community, and private  
          universities should not be able to use faith as an excuse to  
          discriminate and avoid complying with state laws. SB 1146 would  
          require universities who operate under a federal Title IX  
          exemption, or an exemption to California's Equity Act, to  
          disclose that information to CSAC and disseminate the  
          information to students and staff.  Additionally, the bill would  
          allow an individual that has encountered discrimination at a  
          religiously controlled university that receives public funds,  
          and does not meet the new narrowed religious exemption, to  
          pursue a remedy through a civil action, like any of their peers  
          can at other higher education institutions." 



          Issues to consider and requested amendments.  The Committee has  








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          received numerous letters and comments on this bill, containing  
          several requested amendments.  The following is a summary of the  
          provisions of the bill, the major comments received, and a  
          discussion of the requested amendments. 



          1)Religious freedom.  Numerous commenters argue that this bill  
            undermines the First Amendment to the United States  
            Constitution and Article I of the California Constitution,  
            which generally prohibit laws impeding the free exercise of  
            religion.  



            Through consultation with Legislative Counsel, Committee staff  
            understands that limits to religious freedom for entities that  
            receive public funds or public benefit have been established,  
            for example:



             a)   Bob Jones University vs. United States, 461 U.S. 574  
               (1983).  Bob Jones University, citing biblical principles,  
               excluded black applicants until 1971, and after 1975 denied  
               "admission to applicants engaged in an interracial marriage  
               or known to advocate interracial marriage or dating." In  
               1983, the United States Supreme Court held that the  
               religion clauses of the First Amendment did not prohibit  
               the Internal Revenue Service from revoking the tax exempt  
               status of a religious university whose practices are  
               contrary to a compelling government public policy, such as  
               eradicating racial discrimination.  



             b)   Loma Linda University Policy on Immigration.  According  
               to a June 9, 2016, letter from the American Civil Liberties  
               Union (ACLU) address to administrators at Loma Linda  








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               University (LLU), on April 27, 2016, LLU informed a  
               California student that she would not be admitted to LLU's  
               doctor of physical therapy program because she is a  
               recipient of the federal Deferred Action for Childhood  
               Arrivals (DACA).  According to the ACLU letter, the LLU  
               disqualifies DACA students for, among other reasons, "being  
               a religious-sponsored institution, we require legal/lawful  
               status that covers the duration of the program of study."   
               In their letter to LLU, ACLU notes that the Section 1981 of  
               the federal Civil Rights Act prohibits both public and  
               private actors from discriminating on the basis of  
               alienage.  Committee staff understands that LLU has  
               indicated that the enrollment notification sent to the  
               student on April 27, 2016, was a mistake and has agreed  
               that immigration status is not a legitimate basis for  
               admission denial. 



            This bill would apply the Equity Act to religious institutions  
            that do not fall within the scope of the narrowed exemption,  
            to the extent that those institutions continue to receive  
            public funds, for example, through the Cal Grant program.  



            Some institutions have raised concerns that by applying the  
            provisions of the Equity Act to their institutions, their  
            rights and ability to conduct religious curriculum or  
            activities or to require students and faculty to participate  
            in religious observances or ceremonies would be infringed.   
            Committee staff understands it is not the intent of the author  
            to prevent religious colleges from conducting education  
            consistent with their religious beliefs, but to ensure that  
            religious colleges are not discriminating on the basis of a  
            protected class.  











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            The author has proposed conceptual amendments to address these  
            concerns, which would strike the current contents of the  
            religious exemption (Section 66271 (a) and (b)) and instead  
            provide that a "religious educational institution shall be  
            subject to the provisions of this chapter except with respect  
            to the prohibitions concerning religion."  



            Committee staff notes, however, that "except with respect to  
            the prohibitions concerning religion" is undefined, and it is  
            unclear whether this exception could result in allowable  
            discrimination against a California protected class if the  
            religious institutions determines that discrimination is  
            consistent with the tenets of the religion. 



            Alternatively, if the concern is to clearly allow religious  
            teachings, ceremonies and observances of a religious  
                institution, the existing language of the bill could be  
            amended to clearly allow religious ceremonies, teachings and  
            other activities that may be required of students, faculty and  
            staff of religious institutions.



          2)Discrimination and continued participation in the Cal Grant  
            Program.  Numerous commenters have requested an amendment to  
            allow a religious college or university to continue to receive  
            public funds through the Cal Grant Program, regardless of  
            whether that institution is compliant with the amended Equity  
            Act requirements.   



            According to AICCU, the author has committed "to retain the  
            rights of students attending faith-based colleges and  
            universities to receive a Cal Grant award," and recent  








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            amendments that remove the rights of these institutions to  
            continue to receive Cal Grant awards "were inadvertently  
            deleted from the bill."  AICCU argues that without an  
            amendment to allow religious colleges non-compliant with the  
            Equity Act to continue to receive Cal Grant awards "over  
            16,000 low-income students attending their institutions of  
            choice would have faced losing financial aid to pursue their  
            college degree."



            As previously outlined, unlike Title IX, the Equity Acts no  
            longer apply only to gender discrimination, but to all of  
            California's protected classes.  Additionally, because the  
            Equity Acts do not require institutions to provide information  
            regarding which aspects of the Acts they are not able to  
            comply, it is unclear what types of noncompliance or  
            discrimination might be allowed through an exemption for Cal  
            Grant participation.  



            As previously outlined, current laws are inconsistent with  
            regards to religious exemptions and non-discrimination  
            requirements for entities that receive public funds.  The  
            Equity Acts currently provide an exemption to religious  
            institutions for discrimination based on all of California's  
            protected classes, including disability, gender, gender  
            identity, gender expression, nationality, race or ethnicity,  
            religion, sexual orientation, or any other characteristic that  
            is contained in the definition of hate crimes.  The  
            non-discrimination requirements of Government Code Section  
            11135 apply to all public funding recipients, and do not  
            contain a statutory religious exemption.



            In consultation with Legislative Counsel, Committee staff  
            understands it is an unsettled question as to whether or not  








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            existing law authorizes (under the Equity Act) or prohibits  
            (under the Government Code, federal Civil Rights Act, etc) a  
            religious college from receiving public funds and  
            discriminating on the basis of a protected class.  However, by  
            explicitly amending the Equity Acts to explicitly allow a  
            religious college to participate in Cal Grant and receive  
            public funds, concerns have been raised that such a change  
            could inadvertently limit a student's rights provided under  
            other California laws.  



            Does the Legislature intend for religious institutions to  
            receive public funds, through the Cal Grant program, and be  
            exempt from all of California's non-discrimination  
            requirements?  Is the intent of the Legislature to protect  
            some classes such as race, immigration status, where other  
            laws may provide such protection, but not gender or sexual  
            identity, where that protection may not be provided by other  
            laws?  Alternatively, if the primary concern is that  
            application of the Equity Acts would infringe on freedom of  
            religious teachings, observances and ceremonies, the author  
            and committee may wish to specifically address those issues.  



            The author has proposed amendments to specify that this bill  
            would not affect Cal Grant participation.  The amendments are  
            designed to ensure that the changes proposed in this bill do  
            not limit or enhance Cal Grant participation; meaning that  
            where other laws prevent discrimination, those laws would  
            still be enforceable.  



          3)Disclosure of religious exemptions.  Many private and  
            religious colleges and universities have expressed support for  
            the provisions of this bill that require disclosure of  
            exemptions to Title IX and the Equity Act.  According to La  








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            Sierra University, this bill would "create a new transparency  
            and accountability requirement to ensure that students,  
            faculty, staff and others including policymakers, are aware of  
            any United States Department of Education (USDE) Title IX  
            waivers, that have been sought and approved."



            Committee staff notes that this bill would require disclosure  
            relative to Title IX and Equity Act exemptions.  Title IX  
            exemption information is currently available on the USDE  
            website; however, as previously discussed, Equity Act  
            exemption information is not publicly available.     



            Committee staff recommends an amendment to require  
            institutions, in addition to disclosing the basis for the  
            Title IX or Equity Act exemption, also disclose the scope of  
            activities authorized by the exemption.  For example, whether  
            these activities relate to admissions and discipline, housing  
            or student services, etc.  Prospective students and employees  
            may want to know if an institution sought an exemption for  
            purposes of transgender housing policies, or for purposes of  
            allowing a student to be denied admission or expelled based on  
            a California protected class, for example.   
          


          Related legislation.  AB 1888 (Low), which was approved by this  
          committee on March 15, 2016, and subsequently held on suspense  
          in Assembly Appropriations Committee, would have prohibited an  
          institution participating in the Cal Grant Program from  
          discriminating against a student or employee on the basis of a  
          protected class, or from applying for and receiving a federal  
          Title IX waiver for gender discrimination.


          








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          REGISTERED SUPPORT / OPPOSITION:




          Support


          Equality California (Sponsor)


          City of Los Angeles


          Los Angeles LGBT Center


          Transgender Law Center


          Secular Coalition for California




          Opposition


          California Catholic Conference, Inc.


          California Family Alliance


          Church State Council










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          John Paul the Great Catholic University


          Loma Linda University


          National Center for Law & Policy


          Pacific Justice Institute


          Pacific Union College


          14 Individuals


          


          Analysis Prepared by:Laura Metune / HIGHER ED. / (916)  
          319-3960