BILL ANALYSIS                                                                                                                                                                                                    



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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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