BILL ANALYSIS Ó
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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