BILL ANALYSIS Ó
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