BILL ANALYSIS Ó SB 1146 Page 1 SENATE THIRD READING SB 1146 (Lara) As Amended August 19, 2016 Majority vote SENATE VOTE: 26-13 -------------------------------------------------------------------- |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+-----------------------+---------------------| |Higher |8-2 |Medina, Bloom, Irwin, |Chávez, Olsen | |Education | | | | | | | | | | | |Jones-Sawyer, Levine, | | | | |Santiago, Weber, | | | | |Williams | | | | | | | |----------------+-----+-----------------------+---------------------| |Judiciary |7-2 |Mark Stone, Alejo, |Wagner, Gallagher | | | |Chau, Chiu, Cristina | | | | |Garcia, Holden, Ting | | | | | | | |----------------+-----+-----------------------+---------------------| |Appropriations |13-3 |Gonzalez, Bloom, |Bigelow, Gallagher, | | | |Bonilla, Bonta, |Obernolte | | | |Calderon, Daly, | | | | |Eggman, Holden, Quirk, | | SB 1146 Page 2 | | |Santiago, Weber, Wood, | | | | |McCarty | | | | | | | | | | | | -------------------------------------------------------------------- SUMMARY: Would require a postsecondary educational institution (institution) that claims a religious exemption from federal Title IX of the Education Amendments of 1972 (Title IX) or the California Equity in Higher Education Act (Equity Act) to make specified disclosures to students, faculty, employees and to the California Student Aid Commission (CSAC). Specifically, this bill: 1)Requires an institution in this state that claims a religious exemption under Title IX or the Equity 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. 2)Requires the institution to submit the aforementioned material relating to any claimed exemption to CSAC and requires CSAC to post this information on its Internet Web site. EXISTING LAW: Numerous state and federal laws exist to prevent discrimination in public programs, programs that receive or benefit from public funding, and in K-12 and higher education. These laws are, in some cases, inconsistent. A specific exemption for religious entities is contained in some nondiscrimination laws. What follows is a non-exhaustive list of relevant existing laws related to discrimination, public funding, and higher education. SB 1146 Page 3 1)Federal law establishes Title IX to prohibit discrimination, on the basis of sex, in educational programs or activities receiving federal financial assistance (including grants and loans to students). Exemptions are provided, including for fraternities and sororities, military institutions, traditional male or female institutions, and institutions controlled by religious organizations. For purposes of the Title IX religious exemption, an institution will be considered to be controlled by a religious organization if one or more of the following conditions is true: a) It is a school or department of divinity, defined as an institution or a department or branch of an institution whose program is specifically for the education of students to prepare them to become ministers of religion or to enter upon some other religious vocation, or to prepare them to teach theological subjects; or b) It requires its faculty, students or employees to be members of, or otherwise espouse a personal belief in, the religion of the organization by which it claims to be controlled; or, c) Its charter and catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof or is committed to the doctrines of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof. (34 Code of Federal Regulations (C.F.R.) Section 106.12) 2)The California Equity in Education/Higher Education Act SB 1146 Page 4 (Equity Acts) (Education Code Sections 200 et seq. and 66270 et seq.) apply to educational institutions that receive public funds and prohibits those institutions, among other protections, from discriminating against a person on the basis of any of California's protected classes (disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes). The Equity Acts can be enforced through a civil action. According to Legislative history, the Equity Acts were first adopted in 1982, and were based on federal Title IX. At the time of adoption, the Equity Acts applied only to gender discrimination. In 1982, an exemption was provided, consistent with Title IX, for an educational institution that is controlled by a religious organization if the application would not be consistent with the religious tenets of that organization. In the time since adoption in 1982, the Equity Acts have been expanded to encompass all of California's protected classes. The religious exemptions, however, were not amended. Today, the Equity Acts appear to provide a religious institution the right to accept public funds and discriminate on the basis of any of California's protected classes, including race, ethnicity, sexual orientation, disability, etc. 3)Federal Title VI (42 United States Code (U.S.C.) Section 2000d et seq.) was enacted as part of the Civil Rights Act of 1964. It prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. If a recipient of federal assistance is found to have discriminated and voluntary compliance cannot be achieved, the federal agency providing the assistance is directed to either initiate fund termination proceedings or SB 1146 Page 5 refer the matter to the Department of Justice for appropriate legal action. Aggrieved individuals may file administrative complaints with the federal agency that provides funds to a recipient, or the individuals may file suit for appropriate relief in federal court. Title VI does not contain an exemption for religious organizations or religious educational institutions that receive public funds. 4)California Government Code Section 11135, which was enacted in 1977 and appears to be based on Federal Title VI, prohibits any program or activity that is operated by the state directly, or funded directly by the state, or an organization that receives financial assistance from the state, from unlawfully denying, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, any person full and equal access to the benefits of these programs or activities. California law provides that these rights may be enforced by a civil action for equitable relief, which may be independent of any other rights and remedies. Similar to Title VI, California statute does not provide for a religious exemption. Currently, Government Code 11135 is inconsistent with the Equity Acts, in regards to public funds used for education, and it is unclear if the Legislature intended to provide a religious exemption to allow religious institutions to receive public funds and discriminate on the basis of gender (which the Act(s) covered at the time of the adoption of the exemption) or on the basis of all of California's protected classes (which the Equity Acts have been expanded to include). FISCAL EFFECT: According to the Assembly Appropriations SB 1146 Page 6 Committee, any costs to CSAC would be minor and absorbable. COMMENTS: Purpose of this bill. The author notes that the religious exemption contained in the Equity Act is much more far reaching than the federal Title IX exemption. Universities that receive California public funds do not have to apply or report to any California entity in order to fall under the exemption. According to the Association of Independent California Colleges and Universities (AICCU) 31 of their institutional members reported that they participate in the Cal Grant Program and operate under the California exemption. As there is no requirement for approval of an exemption, or related reporting, it is unclear what aspects of the Equity Act, or its non-discrimination requirements, with which these institutions do not comply. According to the author, classrooms are supposed to be places where students feel safe and can learn without fear of discrimination or harassment. California has established some of the strongest protections for the LGBT (Lesbian, Gay, Bisexual, Transgender) community, and private universities should not be able to use faith as an excuse to discriminate and avoid complying with state laws. This bill would require universities who operate under a federal Title IX exemption, or an exemption to California's Equity Act, to disclose that information to CSAC and to students and staff. Related legislation. AB 1888 (Low) of 2016, which was held on suspense in Assembly Appropriations Committee, would have prohibited an institution participating in the Cal Grant Program from discriminating against a student or employee on the basis of a protected class, or from applying for and receiving a federal Title IX waiver for gender discrimination. SB 1146 Page 7 Analysis Prepared by: Laura Metune / HIGHER ED. / (916) 319-3960 FN: 0004708