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