BILL ANALYSIS Ó
SB 1146
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SENATE THIRD READING
SB
1146 (Lara)
As Amended August 19, 2016
Majority vote
SENATE VOTE: 26-13
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|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
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| | |Santiago, Weber, Wood, | |
| | |McCarty | |
| | | | |
| | | | |
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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.
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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
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(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
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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
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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.
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Analysis Prepared by:
Laura Metune / HIGHER ED. / (916) 319-3960 FN:
0004708