BILL ANALYSIS Ó
SB 1146
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Date of Hearing: August 3, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
SB 1146
(Lara) - As Amended June 29, 2016
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Urgency: No State Mandated Local Program: NoReimbursable: No
SUMMARY:
This bill 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
to state anti-discrimination laws. Specifically, this bill:
1)Requires any postsecondary educational institution in
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California 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, as specified, 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.
2)Requires the institutions to provide all materials related to
the exemptions to the California Student Aid Commission
(CSAC), and requires the commission to post and maintain a
list of these institutions on its website.
3)Provides that notwithstanding any other law, a postsecondary
educational institution that is controlled by a religious
organization and receives financial assistance from the state
or enrolls students who receive financial assistance, is
subject to Government Code Section 11135, which 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.
4)Provides that (3) does not prohibit the institution 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
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.
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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.
5)Specifies that the provisions of this bill do not apply if the
purpose of a religiously-controlled postsecondary educational
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 the bill would not be consistent
with the religious tenets of the organization.
6)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
of the organization.
FISCAL EFFECT:
Given the consequences to the institutions that could be
impacted by this bill and the legal issues raised by this bill
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(see the Assembly Judiciary Committee analysis), the probability
of litigation against the state appears fairly high. The state
could therefore incur significant legal costs, at least in the
low hundreds of thousands of dollars.
It appears that religious postsecondary educational institutions
that participate in the Cal Grant program and have policies that
do not comply with the antidiscrimination provisions of the bill
could: (a) choose not to continue their Cal Grant participation
and thereby no longer enroll Cal Grant awardees, or (b) continue
Cal Grant participation and be subject to possible litigation
through an action brought by an aggrieved student or employee.
To the extent some institutions would no longer participate in
the Cal Grant program, their students that would otherwise be
awarded Cal Grants could discontinue their education, remain at
the institution and lose their award eligibility, or transfer
and maintain their awards at another Cal Grant participating
institution-either public or private. Under these first two
scenarios, the state would realize unknown, but potentially
significant Cal Grant savings. (The maximum Cal Grant award at
such institutions will be about $8,000 starting in 2017-18.)
To the extent some of the Cal Grant-eligible students described
above would instead attend a California Community College or the
California State University (CSU), the state would bear the
costs of those students attendance, which could be significant.
For every 100 additional CCC or CSU students, state costs would
be $475,000 (GF-Prop 98) at the CCC or $750,000 (General Fund)
at the CSU. These costs would be offset to some extent by
savings from lower Cal Grant awards amounts at the CCC and CSU.
COMMENTS:
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1)Purpose. 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.
This bill is sponsored by Equality California. Supporters
argue the bill is necessary to ensure that students at
religious colleges and universities have the same rights and
protections as their peers in other colleges. Supporters
believe LGBT students should not face the additional burden of
facing official discrimination from the colleges they have
chosen to attend. More generally, supporters see 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, supporters argue
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.
2)The Equity in Education Act prohibits, among other
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protections, a person from being subjected to discrimination
on the basis of disability, gender, gender identity, gender
expression, nationality, race or ethnicity, religion, sexual
orientation, or any other characteristic that is contained in
the definition of hate crimes, in any program or activity
conducted by an educational institution that receives, or
benefits from, state financial assistance or enrolls pupils
who receive state student financial aid. An exemption is
provided 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.
3)Federal Title IX of the Education Amendments of 1972 (Title
IX) prohibits discrimination, on the basis of sex, in
educational programs or activities receiving Federal financial
assistance. Various exemptions are provided, including for
fraternities and sororities, military institutions,
traditional male or female institutions, and institutions
controlled by religious organizations. 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 a report from the Human Rights Campaign, 56 schools
nationwide 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 sexual orientation. Schools most commonly
requested exemptions from provisions of the law relating to
housing, access to facilities, and athletics.
4)Opposition. Groups that generally support the purpose of this
bill, i.e preventing discrimination against LGBT students,
whether at religious or non-religious schools, have expressed
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concern with certain provisions of the bill, in particular the
various exemptions or "carve-outs" from the general
application of Government Code Section 11135.
Other opponents 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 requiring 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.
Finally, Loma Linda University and Azusa Pacific University
have expressed concern that, with enactment of this bill, many
students of limited means who wish to attend religious
institutions would no longer be able to use their Cal Grants.
5)Related Legislation. AB 1888 (Low) required, as a condition of
voluntary participation in the Cal Grant Program, each Cal
Grant participating public and private higher education
institution to in part certify to CSAC that it had not
received or applied for a Title IX waiver from federal
nondiscrimination requirements. AB 1888 was held on this
committee's Suspense file.
Analysis Prepared by:Chuck Nicol / APPR. / (916)
319-2081
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