BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:   June 30, 2016


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          SB  
          1146 (Lara) - As Amended June 29, 2016


          SENATE VOTE:  26-13


          SUBJECT:  Postsecondary education:  nondiscrimination


          KEY ISSUES:  


          1)Should a college or university that receives state funds and  
            claims a religious exemption to TITLE IX be required to  
            disclose the basis and scope of that exemption to current and  
            prospective students, faculty, and staff?


          2)should a college or university that is controlled by a  
            religious organization and receives state financial assistance  
            be subject to state anti-discrimination laws, subject to  
            certain exceptions?


                                      SYNOPSIS


          This bill seeks to ensure that students who attend  
          religiously-based colleges or universities, or any other  








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          postsecondary institution, have the same rights, and have the  
          same protections against unlawful discrimination, as students  
          who attends non-religiously-based postsecondary schools, whether  
          public or private.  The bill would achieve this goal by  
          specifying that existing Government Code Section 11135 - which  
          prohibits discrimination in any state-operated or state-funded  
          program or activity - applies to any religious college or  
          university that receives or benefits from state assistance.   
          Recognizing that private religious schools have a right to  
          exercise their religion, the bill would authorize certain  
          exemptions, so long as those exemptions do not amount to  
          discrimination on the basis of gender identity or sexual  
          orientation.  In addition, the bill would require postsecondary  
          educational institutions that claim a religious exemption from  
          federal Title IX laws and regulations to disclose to students,  
          faculty, and staff the basis of that exemption.  In this way,  
          students, faculty, and staff will be fully informed about  
          restrictions imposed by the school and whether they want to  
          subject themselves to those conditions.  The bill now before the  
          Committee is substantially revised from prior versions, which  
          means that it cannot be said with certainty whether prior  
          supporters and opponents maintain their past positions on the  
          bill.  However, the general outlines of those positions remain  
          the same: the author, sponsor, and supporters contend that  
          students, especially LGBT students, should not be subject to  
          forms of discrimination that are otherwise unlawful, even though  
          it may be reasonable to expect those students conform to  
          non-discriminatory religious practices and conduct.  Opponents  
          contend with equal vigor that any measure that requires them to  
          permit conduct, or provide facilities, that are inconsistent  
          with their religious beliefs is an affront to the religious  
          liberty guaranteed to them under the Free Exercise clause of the  
          First Amendment.  


          SUMMARY:  Requires a college or university that claims a  
          religious exemption from Title IX laws and regulations to make  
          specified disclosures to students, faculty, and staff, and  
          specifies that religious colleges and universities are subject  








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          to state anti-discrimination laws, as specified. Specifically,  
          this bill:  


          1)Requires any postsecondary educational institution in this  
            state that claims a religious exemption under federal Title IX  
            of the Education Amendments of 1972 or the state Equity in  
            Higher Education Act to disclose to current and prospective  
            students, faculty members, and employees the basis for  
            claiming the religious exemption and the scope of the  
            allowable activities provided by the exemption.  Specifies the  
            manner in which the disclosures shall be made.  Specifies that  
            the postsecondary educational institution shall submit  
            material relating to any claimed exemption to the Student Aid  
            Commission and requires the Commission to post this  
            information on its Internet website. 


          2)Provides that notwithstanding any other law, a postsecondary  
            educational institution that is controlled by a religious  
            organization and that receives financial assistance from the  
            state or enrolls students who receive financial assistance is  
            subject to a statute (Government Code Section 11135) that  
            prohibits discrimination in any state-operated or state-funded  
            program or activity, and provides that a violation of that  
            statute may be enforced by a private right of action, as  
            specified.


          3)Provides that the above provision shall not prohibit a  
            postsecondary educational institution controlled by a  
            religious institution that receives financial assistance from  
            the state or enrolls students who receive state financial  
            assistance from doing any of the following:


             a)   Providing housing or restroom accommodations reserved  
               for either male or female students if students are afforded  
               housing or restroom accommodations consistent with their  








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               gender identity. 


             b)   Providing separate housing accommodations reserved  
               primarily for married students or for students with minor  
               dependents who reside with them if "married" includes both  
               married opposite-sex and married same-sex couples. 


             c)   Enforcing rules of moral conduct and establishing  
               housing policies in accordance with these rules of moral  
               conduct if the rules are uniformly applicable to all  
               students regardless of the student's sexual orientation or  
               gender identity.   


             d)   Enforcing religious practices if these practices are  
               uniformly applicable to all students regardless of the  
               student's sexual orientation or gender identity. 


             e)   Admitting only students of one sex if the institution  
               traditionally and continually from its establishment had  
               that policy. 


          4)Specifies that the provisions of this bill do not apply to a  
            religiously-controlled postsecondary educational institution  
            if the purpose of the institution is to prepare students to  
            become ministers of the religion or to enter upon some other  
            vocation of the religion and if the application of this  
            section would not be consistent with the religious tenets of  
            the organization. 


          5)Specifies that the provisions of this bill do not prevent a  
            religiously-controlled postsecondary educational institution  
            from prohibiting the use of the institution's real property  
            for any purpose that is inconsistent with the religious tenets  








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            of the organization. 


          


          EXISTING LAW:   


          1)Declares, under the Equity in Higher Education Act, that it is  
            the policy of this state to afford all persons equal rights  
            and opportunities in the postsecondary educational  
            institutions of this state, regardless of a person's  
            disability, gender, gender identity, gender expression,  
            nationality, race or ethnicity, religion, sexual orientation,  
            or any other basis that is contained in the prohibition of  
            hate crimes as set forth in the Penal Code, including the  
            perception that the person has any of those characteristics or  
            that the person is associated with a person who has, or is  
            perceive to have, any of those characteristics.  (Education  
            Code Sections 66251 and 66260.6.)


          2)Provides that no person shall be subject to discrimination on  
            the basis of disability, gender, gender identity, gender  
            expression, nationality, race or ethnicity, religion, sexual  
            orientation, or any other basis that is contained in the  
            prohibition of hate crimes as set forth in the Penal Code, in  
            any program or activity conducted by any postsecondary  
            educational institution that receives, or benefits from, state  
            financial assistance or enrolls students who receive state  
            student financial aid. (Education Code Section 66270.)


          3)Requires a postsecondary educational institution, prior to  
            receipt of any state financial assistance or state financial  
            aid, to provide assurances to the agency administering the  
            funds that each program or activity conducted by the  
            postsecondary educational institution will be conducted in  








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            compliance with the Equity in Higher Education Act and all  
            other applicable provisions of state law prohibiting  
            discrimination on the basis of sex.  (Education Code Section  
            66290.) 


          4)Provides that the Equity in Higher Education Act shall not  
            apply to 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 Section 66271.) 


          5)Specifies that the Equity in Higher Education Act may be  
            enforced through a civil action.  (Education Code Section  
            66292.4.) 


          6)Provides, under the Unruh Civil Rights Act, that persons  
            within the jurisdiction of this state are free and equal, and  
            no matter what their sex, race, color, religion, ancestry,  
            national origin, disability, medical condition, genetic  
            information, marital status, sexual orientation, citizenship,  
            primary language, or immigration status, are entitled to the  
            full and equal accommodations, advantages, facilities,  
            privileges, or services in all business establishments of  
            every kind whatsoever.  (Civil Code Section 51.)


          7)Provides that no person in this state shall, on the basis of  
            race, national origin, ethnic group identification, religion,  
            age, sex, sexual orientation, color, genetic information, or  
            disability, be unlawfully denied full and equal access to the  
            benefits of, or be unlawfully be subject to discrimination  
            under, any program or activity that is conducted, operated, or  
            administered by the state or by any state agency, is funded  
            directly by the state, or receives any financial assistance  
            from the state.  Specifies that these provisions may be  
            enforced by a civil action for equitable relief, which shall  








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            be independent of any other rights or remedies.  (Government  
            Code Sections 11135 and 11139.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.  



          COMMENTS:  According to the author, this bill seeks to ensure  
          that students who attend religiously-based colleges or  
          universities have the same rights, and have the same protections  
          against unlawful discrimination, as students who attend  
          non-religiously-based schools, whether public or private.  The  
          bill would achieve this by specifying that Government Code  
          Section 11135 - which prohibits discrimination in any  
          state-operated or state-funded program or activity - applies to  
          any religious college or university that receives or benefits  
          from state assistance.    Recognizing that private religious  
          schools have a right to exercise their religion, the bill  
          affords reasonable accommodations from the strictest  
          applications of existing anti-discrimination law.  For example,  
          a religious school could reserve certain housing for married  
          students only, enforce rules of moral conduct consistent with  
          their religious tenets, or require certain religious practices  
          so long as those rules were applicable to all students  
          regardless of sexual orientation or gender identity.  In  
          addition to clarifying that anti-discrimination law applies to  
          religious colleges and universities, the bill would also require  
          postsecondary educational institutions that claim a religious  
          exemption from the federal Title IX regulations, or from  
          California's Equity in Higher Education Act, to disclose to  
          students, faculty, and staff the basis and scope of that  
          exemption.  


          In short, the bill seeks to strike a balance to allow religious  
          colleges and universities to enforce codes of moral conduct or  
          housing policies - that might otherwise infringe upon student  
          rights - so long as those policies do not violate established  








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          state laws and policies protecting persons from discrimination  
          on the basis of gender identity or sexual orientation.  Just as  
          our society has long accepted that religious belief should not  
          be a pretext for racial discrimination, our society is clearly  
          moving in the direction, however haltingly, to the view that  
          religious belief should not be a pretext for discriminating  
          against a person because of his or her sexual orientation or  
          gender identity.  Some celebrate the direction that society is  
          moving on this issue, while others clearly disapprove and even  
          condemn it.  But in whatever direction the arc of justice may  
          eventually bend, in the meantime it is the law and policy of  
          this state that state funds should not support discrimination of  
          any kind.  


          Opponents of this bill may contend that this bill somehow  
          discriminates against them on the basis of religion.  To the  
          contrary, state law prohibits discrimination in state-operated  
          or state-funded programs or activities on the basis of religion,  
          just as it does for any other protected characteristic.   
          Moreover, not only does the state allow discrimination against  
          religion, it accommodates religion by allowing religious schools  
          to discriminate, if they so choose, by restricting enrollment to  
          members of their own religion.  (Government Code Sections 12940  
          and 12926.2 (a)-(f).)  Few religious schools actually restrict  
          admission in this way, not only because they wish to reach more  
          people, but also because they quite understandably wish to  
          benefit from state assistance - which they could not do, under  
          Government Section 11135, if they only admitted persons of a  
          particular religion.  


          Background: Title IX and the Religious Exemption:  Existing  
          federal law, Title IX of the Education Amendments of 1972, bars  
          sex discrimination in an educational institution that receives  
          or benefits from federal aid.  While perhaps best known for its  
          requirement that schools provide equal funding for athletic  
          programs, Title IX covers several academic, extracurricular, and  
          administrative matters related to discrimination on the basis of  








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          sex.  It applies not only to admissions, but also to treatment  
          of students once they are admitted, including housing and  
          facilities, courses and other educational activities,  
          counseling, student financial aid, student health and insurance  
          benefits, marital or parental status, and athletics.  One very  
          significant exception to Title IX is that it allows same-sex  
          colleges at the undergraduate level in order to accommodate the  
          many historically all-male and all-female colleges.  However,  
          graduate and professional programs must be open to both sexes.    
           


          Most relevant to this bill, Title IX also has a religious  
          exemption.  Title IX does not apply to an educational  
          institution that is controlled by a religious organization to  
          the extent the application of Title IX would be "inconsistent  
          with the religious tenets of the organization." (34 CFR Section  
          106.12.)  This same principle - indeed nearly the identical  
          language - is incorporated into California's Equity in Higher  
          Education Act.  Under Title IX, an institution is considered to  
          be "controlled by a religious organization" if one or more of  
          the following is true: (1) It is a school or department of  
          divinity, even if existing as a branch or department of an  
          institution, whose program is specifically for the education of  
          students to prepare them to become ministers of religion or to  
          enter some other religious vocation, including preparing the  
          students to teach theological subjects; (2) It requires faculty,  
          students, or staff to be members of, or otherwise espouse a  
          personal belief in the religion of the organization; and (3) Its  
          charter or other official publication contains an explicit  
          statement that it is controlled by the religious organization,  
          and the members of its governing body are appointed by the  
          controlling organization, and it receives a significant amount  
          of financial support from the controlling religious  
          organization.  


          An institution that wants to claim an exemption generally  
          submits a statement to the U.S. Department of Education (DOE)  








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          stating what specific provisions of Title IX or its regulations  
          conflict with specific tenets of the religion. (34 CFR 106.12  
          (b).)  Copies of these requests, along with the DOE response,  
          may be found on the DOE website.  It appears that these requests  
          are rather leniently granted.  Indeed, while some DOE response  
          letters asked for more information from the schools seeking a  
          religious exemption from Title IX, the Committee is not aware of  
          any exemption request that was flatly refused.  DOE recently  
          made these documents available to the public on its website in  
          response from pressures by LGBT and other civil rights groups,  
          so as to inform prospective students, faculty, and staff.  At  
          least one California school, Pepperdine University, had claimed  
          a Title IX religious exemption since 1976.  However, Pepperdine  
          recently asked that its exemption be rescinded, presumably  
          because its positions on the issues that prompted the original  
          request have, like much of the rest of society, changed.   


          Equity in Higher Education Act:  Similar to Title IX,  
          California's Equity in Higher Education Act (Equity Act)  
          generally prohibits discrimination.  While Title IX only  
          prohibits discrimination based on "sex" (defined in recent case  
          law and policy memos to include sexual orientation and gender  
          identity), the state Equity Act prohibits discrimination in  
          higher education on the basis of several suspect  
          classifications: disability, gender, gender identity, gender  
          expression, nationality, race or ethnicity, religion, sexual  
          orientation, or any other basis that is contained in the  
          prohibition of hate crimes as set forth in the Penal Code.  The  
          Equity Act applies to any postsecondary educational institution  
          that receives or benefits from state assistance, including by  
          enrolling students who receive financial aid.  Any college or  
          university who wishes to accept state assistance must provide an  
          "assurance" to the state agency that administers the state funds  
          that it complies with the Act.  Also, like Title IX, the Equity  
          Act has a religious exemption: it does not apply to an  
          educational institution that is controlled by a religious  
          organization, if the application of any provision of the Act  
          would not be consistent with the religious tenets of that  








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          organization. 


          Disclosure of Religious Exemptions Under This Bill:  In addition  
          to clarifying that anti-discrimination law applies to religious  
          colleges and universities, this bill would require postsecondary  
          educational institutions that claim a religious exemption from  
          either the federal Title IX laws or regulations, or from  
          California's Equity Act, to disclose to students, faculty, and  
          staff the basis of that exemption and the scope of allowable  
          activities under that exemption.  In this way, students,  
          faculty, and staff will be aware of any restrictions imposed by  
          the school and thereby make an informed decision about whether  
          to attend or accept employment at the school.  The fact that  
          disclosures are made does not mean that schools are free to  
          discriminate.  Any college or university would still be required  
          to comply with Section 11135 (as modified by this bill), the  
          Equity Act, and any other applicable state or federal  
          anti-discrimination laws. 


          Free Exercise Issues:  Opponents of this bill generally claim  
          that this bill infringes upon their rights under the Free  
          Exercise clause of the First Amendment.  That clause, as  
          incorporated by the Fourteenth Amendment, says that no state  
          shall enact any law that infringes upon the "free exercise" of  
          religion.  As interpreted in a long line of Supreme Court cases,  
          the free exercise is generally interpreted to mean that  
          government may not discriminate against anyone on the basis of  
          religion and, perhaps more significant, may not enact laws or  
          adopt policies that unduly "burden" people in the free exercise  
          of religion.  


          The Free Exercise Clause and "Laws of General Applicability:"  
          One of the more difficult questions that courts have faced in  
          the Free Exercise cases concerns the extent to which persons or  
          entities, in the name of religion, may be exempted from "laws of  
          general applicability" - that is, a law that applies to everyone  








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          alike and the purpose of which is neither to advance nor inhibit  
          religion.  To what extent, that is, can a person be excused from  
          general laws because its application, in a particular instance,  
          would interfere with a person's constitutional right to freely  
          exercise his or her religion?  At one end of the spectrum,  
          almost everyone would agree that a person could not engage in  
          human sacrifice and expect to be exempt from a murder conviction  
          because the human sacrifice was a religious exercise.  On the  
          other hand, courts have held, in narrow circumstances, that the  
          Constitution may require reasonable "accommodations" for  
          people's religious belief.  For example, the courts have held  
                  that a state cannot deny unemployment benefits to someone who  
          cannot accept work offered because it would require work on his  
          or her Sabbath; and the Amish may take their children out of  
          school after the eighth grade even though a state's compulsory  
          education law requires students to attend school until the age  
          of sixteen.  However, despite a few cases where the court has  
          required a state to make accommodations to religious belief, the  
          prevailing view appears to be that laid down by the late Justice  
          Scalia in Employment Division v. Smith:  the free exercise  
          clause does not require a state to exempt a person from "laws of  
          general applicability."  So long as the law was not motivated by  
          any religious purpose, and applies to all alike, the  
          Constitution does not require an exemption.  States elect to  
          make reasonable accommodations for religious belief; but, if it  
          is a law of general applicability, the Constitution does not  
          require a statutory exemption. (Employment Division, Department  
          of  Human Resources of Oregon v. Smith (1990) 494 U.S. 872  
          (holding that the Free Exercise clause does not excuse a person  
          from compliance with an otherwise valid law prohibiting conduct  
          that the law is free to regulate); cf. Sherbert v. Verner (1963)  
          374 U.S. 398 (denying unemployment benefits because a person  
          refuses to accept work on the Sabbath imposes a burden on the  
          free exercise of religion); Wisconsin v. Yoder (1972) 406 U.S.  
          205 (holding that the First and Fourteenth Amendments prevent a  
          state from compelling Amish parents to send their children to  
          school until the age of sixteen.) 










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          Government Code Section 11135 is a law of general applicability,  
          and the free exercise clause of the First Amendment does not  
          require a religious exemption, though the state may elect to  
          provide one.  Section 11135 prohibits discrimination against any  
          state-operated or state-funded program or activity that is  
          offered to the public.  The law was not motivated by a religious  
          purpose, nor does it seek to advance or inhibit religion.   
          Rather, the Act sought, consistent with the state's other  
          anti-discrimination laws, to prevent discrimination on the basis  
          of disability, gender, gender identity, gender expression,  
          nationality, race or ethnicity, religion, sexual orientation, or  
          any other basis that is contained in the prohibition of hate  
          crimes as set forth in the Penal Code.  While a government may  
          voluntarily accommodate religion by providing an exemption, it  
          is not required to do so by statute.  If a person or entity  
          believes that the statute, as applied, would infringe upon the  
          Free Exercise clause of the First Amendment, that person or  
          entity could bring an action challenging the application.  But  
          that would be true whether there is a statutory exemption or  
          not.  California already provides one accommodation in this  
          regard.  The Equity Act, as noted, includes an exemption for a  
          postsecondary educational institution that is controlled by a  
          religious organization if application of the statute would  
          conflict with the tenets of the religious organization. 


          Remaining Issues/Amendments that the Author May Wish to  
          Consider:  Although the author has worked diligently with  
          various stakeholders on all sides of this issue, there remain a  
          number of outstanding issues that the author may wish to  
          consider should the bill pass out of this committee and move on  
          to the Assembly Committee on Appropriations. 


          Groups that generally support the purpose of this bill -  
          preventing discrimination against LGBT students, whether at  
          religious or non-religious schools - have communicated to the  
          Committee their discomfort with certain provisions of the bill,  
          in particular the various exemptions or "carve outs" from the  








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          general application of Government Code Section 11135.


          First, while the exemptions provided in the bill appear to be  
          appropriately qualified by the requirement that the exempted  
          activity may still not discriminate on the basis of sexual  
          orientation and gender identity, some who support the spirit of  
          this bill fear that some of the exemptions are ambiguous.  For  
          example, paragraph (3) of subdivision (b) of proposed new  
          section 11135.5 states that schools may enforce rules of moral  
          conduct so long as the rules are "uniformly applicable to all  
          students regardless of the student's sexual orientation of  
          gender identity."  While the intent of this provision is clearly  
          to make sure that codes of moral conduct are applied  
          even-handedly without regard to sexual orientation, it is  
          conceivable that religious schools could draft codes that, while  
          appearing to apply to all students could, as a practical matter,  
          only affect LGBT students.  To cite an extremely blatant  
          example, a school could prohibit homosexual conduct and claim  
          that it was non-discriminatory because it applied to all  
          students - gay or straight - even though as a practical matter  
          it would only affect gay students.  Or a school could prohibit  
          "sodomy," but then define sodomy in such a way that it only  
          applied to homosexual sodomy.  There is also the prospect that a  
          code of moral conduct could be applied unevenly - so that a  
          prohibition against pre-marital sex would only be applied to  
          same-sex relationships and ignored for opposite-sex  
          relationships.  It certainly appears to be the intent of the  
          author that any such moral codes would be applied even-handedly,  
          and the author assumed that such even-handedness was implicit in  
          the requirement that the rules be "uniformly applicable to all  
          students regardless of the student's sexual orientation or  
          gender identity."  


          Second, some have expressed concern that proposed subdivision  
          (c) exempts "an institution," the main purpose of which is to  
          prepare students for a religious vocation.  For example, this  
          provision would exempt a seminary.  While it seems reasonable  








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          that a religious seminary could impose codes of moral conduct on  
          seminarians - including sexual conduct or advocacy of positions  
          at odds with religious teachings - not all employees of the  
          institution are training for a religious vocation.  In addition,  
          some institutions mix training in a religious vocation with more  
          general courses of study, so that it is not always clear whether  
          the "purpose" of the institution is vocational training or  
          general education.  Last year this Committee held an  
          informational hearing in San Francisco on the so-called  
          "ministerial exemption - i.e. the doctrine that "ministers" are  
          not employees under labor laws - as it applied to teachers in  
          Catholic schools.  If those hearings revealed anything, it was  
          that the "ministerial exemption" is a malleable doctrine that  
          could be used to evade state labor laws.  Therefore, as the bill  
          moves forward, the author may wish to consider whether this  
          subdivision should be amended to specify that the exemption does  
          not apply to "the institution" as a whole, but only applies as  
          to those persons preparing for a religious vocation.   


          Third, some have expressed concern that subdivision (d) of  
          Section 11135.5, which provides that the provisions of this bill  
          will not prevent an institution from prohibiting the use of the  
          institution's real property for any purpose inconsistent with  
          its religious tenets, could be used to prevent LGBT students  
          from holding meetings on campus.  This is clearly not the  
          author's intent.  Rather, the purpose of this subdivision was  
          apparently to assuage fears expressed by some opponents that  
          this bill would force religious schools to conduct same-sex  
          marriages in campus churches.  To the extent that the meaning of  
          this provision needs to be clarified, the author may consider  
          amendments in the next committee. 


          Finally, some of have expressed concern that the remedy provided  
          by this bill is very limited.  The bill specifies that any  
          violations of its provisions shall be enforceable by a private  
          right of action as described in Government Code Section 11139.   
          This section in turn, provides for enforcement of Section 11135  








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          "by a civil action for equitable relief, which shall be  
          independent of any other rights of remedies."  In other words, a  
          plaintiff would not be entitled to damages, but only an  
          injunction ordering the school to take some corrective action,  
          whether it be to undo whatever action was taken against the  
          person who brings the action, or to end the policy that gave  
          rise to the action.  Less clear is whether a prevailing  
          plaintiff would be entitled to attorney's fees and court costs.   
          Generally speaking, a prevailing party is not entitled to  
          attorney's fees unless the statute expressly provides for them.   
          That is, California follows the so-called "American Rule," which  
          holds that each side pays its own attorney's fees unless  
          otherwise provided by statute or contract.  Nonetheless,  
          California Code of Civil Procedure Section 1021.5 permits a  
          court to award attorney's fees to a prevailing party where the  
          action results in "the enforcement of an important right  
          affecting the public interest."  So it is possible that a person  
          who brought an action under this bill could obtain an injunction  
          and attorney's fees.  However, if the author wants to allow a  
          prevailing party to be awarded attorney's fees, it would be best  
          to expressly state it in the statute.  Without at least  
          attorney's fees, it seems unlikely that a student would find a  
          lawyer willing to take his or her case. 


          GENERAL ARGUMENTS IN SUPPORT AND OPPOSITION:   Because all of  
          the support and opposition letters submitted to the committee  
          addressed different versions of this bill and elaborated on  
          specific provisions that are no longer in the bill, this  
          analysis will not, as is customary, summarize those letters.   
          However, the general lines of arguments of supporters and  
          opponents - as to the overarching policy objective of the author  
          - can at least be briefly summarized.  Those who support the  
          general intent of this bill argue that it is necessary in order  
          to ensure that students at religious colleges and universities  
          have the same rights and protections as their peers in other  
          colleges.  Supporters have noted studies demonstrating that LGBT  
          students on college campuses suffer disproportionately from  
          sexual harassment and assault, depression, and suicide.   








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          Supporters believe that LGBT students should not face the  
          additional burden of facing official discrimination from the  
          colleges that they have chosen to attend.  More generally,  
          supporters see the policy goal of this bill as a progressive and  
          logical extension of civil rights to LGBT students.  No one  
          would seriously argue that a college that overtly discriminated  
          on the basis of race should benefit from state and taxpayer  
          funds.  By the same token, it does not seem consistent with  
          California law and policy to permit discrimination on the basis  
          of gender identity and sexual orientation, much less to allow  
          such institutions to reap the benefits of state funds. 


          Opponents counter, however, that the First Amendment of the U.S.  
          Constitution protects religious liberty.  They contend that  
          religious colleges and universities have a right to demand that  
          students who choose to attend their schools conform to the  
          religious teachings of those schools; if a student cannot abide  
          by those teachings, then the student should attend a different  
          school.  The religious-based schools argue that their approach  
          to education is holistic, and as such spiritual and educational  
          life is not neatly separated.  They believe that laws which  
          require them to tolerate conduct that is inconsistent with their  
          religious belief as a condition of receiving state funds  
          effectively constitutes an "unconstitutional condition" - that  
          is, it is asking them to forgo a constitutional right as a  
          condition of receiving a public benefit that would otherwise be  
          available to them.  Finally, opponents contend that the private  
          right of action authorized by this bill will subject religious  
          schools to costly litigation. 


          Related Legislation:  AB 1888 (Low) would have prohibited any  
          institution that participates in the Cal Grant student aid  
          program, as a condition of participation, to certify that the  
          institution does not discriminate against any student on the  
          basis of sex, sexual orientation, gender identity, or gender  
          expression, among other things, and that the institution shall  
          not have, apply, or receive a religious exemption under the  








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          federal Title IX program.  This bill was held on suspense in the  
          Assembly Appropriations Committee. 


          


          REGISTERED SUPPORT / OPPOSITION.  




          Support (to prior version of the bill)


          Equality California (Sponsor)


          City of Los Angeles


          Los Angeles LGBT Center


          Transgender Law Center


          Secular Coalition for California




          Opposition (to prior version of the bill)


          California Catholic Conference, Inc.


          California Family Alliance








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          Church State Council


          John Paul the Great Catholic University


          Loma Linda University


          National Center for Law & Policy


          Pacific Justice Institute


          Pacific Union College


          Numerous Individuals




          Analysis Prepared by:Thomas Clark / JUD. / (916)  
          319-2334