BILL ANALYSIS                                                                                                                                                                                                    Ó

          |SENATE RULES COMMITTEE            |                       SB 1146|
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                                UNFINISHED BUSINESS 

          Bill No:  SB 1146
          Author:   Lara (D) 
          Amended:  8/19/16  
          Vote:     21 

           SENATE EDUCATION COMMITTEE:  7-2, 4/6/16
           AYES:  Liu, Block, Hancock, Leyva, Mendoza, Monning, Pan
           NOES:  Huff, Vidak

           SENATE JUDICIARY COMMITTEE:  5-2, 4/19/16
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Moorlach, Anderson

           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SENATE FLOOR:  26-13, 5/26/16
           AYES:  Allen, Beall, Block, De León, Galgiani, Glazer, Hall,  
            Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara,  
            Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan,  
            Pavley, Roth, Wieckowski, Wolk
           NOES:  Anderson, Bates, Berryhill, Cannella, Fuller, Gaines,  
            Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak
           NO VOTE RECORDED:  Runner

           ASSEMBLY FLOOR:  45-28, 8/23/16 - See last page for vote
           SUBJECT:   Discrimination:  postsecondary education

          SOURCE:    Equality California

          DIGEST:  This bill requires a postsecondary educational  


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          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 be  
          accompanied by specified disclosures.  This bill also requires  
          that related materials be submitted to, and posted by, the  
          California Student Aid Commission (CSAC) on its Web site, as  

          Assembly Amendments remove the provisions that would have  
          narrowed the religious exemption only to education programs or  
          activities offered by institutions that prepare students to:   
          become ministers of the religion, enter upon some other  
          religious vocation, or teach theological subjects pertaining to  
          the religion.


          Existing federal law:

          1)Establishes Title IX to prohibit discrimination, on the basis  
            of sex, in educational programs or activities receiving  
            Federal financial assistance.  Existing law provides for  
            various  exemptions from these provisions, including for  
            fraternities and sororities, military institutions,  
            traditional male or female institutions, and institutions  
            controlled by religious organizations.  (Title 20 United  
            States Code, Title 20 § 1681-1688)

          2)Provides that an institution will be considered to be  
            controlled by a religious organization for purposes of a Title  
            IX religious exemption 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  


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                                                                    Page  3

               teach theological subjects.

             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  

             c)   Its charter and catalog, or other official publication,  
               contains 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.   
               (Code of Federal Regulations, Title 34 § 106.12)

          Existing state law:

          1)Establishes the Equity Act to prohibit 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 statutory 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. (Education Code § 66270)

          2)Provides an exemption from the provisions of the Equity Act  
            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.  
            (Education Code § 66271)   

          3)Declares the Legislature's intent that the Equity Act be  
            interpreted as consistent with other specified federal and  
            state laws, including Title IX, except where the Act grants  
            more protections or imposes additional obligations.   
            (Education Code § 66252)

          This bill:


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          1)Requires that institutions claiming a religious exemption  
            under Title IX or the Equity Act comply with disclosure  
            requirements. Specifically, it:

             a)   Requires disclosure to current and prospective students,  
               faculty, and employees, of the basis for claiming or having  
               such an exemption and the scope of the allowable activities  
               provided by the exemption.

             b)   Requires display of such disclosure in a prominent  
               campus or school site location, as specified.

             c)   Requires inclusion of such disclosure in written  
               materials sent to prospective students seeking admission.

             d)   Requires that disclosure be provided as part of  
               orientation programs for new students, as specified.  

             e)   Requires that disclosure be provided to faculty members,  
               administrative staff, and support staff annually, as  
               specified, and to new employees upon hiring.

             f)   Requires that disclosure be included in any  
               institutional publication that sets forth rules,  
               regulations, procedures and standards of conduct for the  

          2)Requires that beginning with the 2017-18 school year,  
            materials and information related to the request and granting  
            of an exemption from Title IX or the Equity in Higher  
            Education Act requirements be submitted to the CSAC and posted  
            on its Web site and requires CSAC to post and maintain a list  
            of institutions claiming exemption and their respective bases  
            for the claim.

          3)Provides that beginning with the 2017-18 school year, each  
            postsecondary educational institution that has an exemption  
            shall submit to the CSAC its basis for having the exemption.



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          Need for the bill.  According to the author, private  
          universities are using federally authorized exemptions from  
          Title IX as a means to discriminate.  The author is concerned  
          that there is no requirement that these institutions disclose  
          their exemption status, and students and staff across the  
          country report learning of the exemption only after being  
          expelled from school or fired from their jobs. Transgender  
          students have reported being denied gender appropriate housing  
          and some have been expelled as a result of revealing their  
          gender identify. Under current law, these students and staff  
          have no recourse. This bill narrows the religious exemption  
          afforded to these institutions, and requires disclosure of such  

          Comparison to federal regulations.  This bill statutorily  
          establishes one of three conditions which must be met by an  
          institution per Title IX regulations in order to be granted an  
          exemption under the state Equity in Higher Education Act.  
          Consistent with federal Title IX regulations, it authorizes an  
          exemption for educational programs or activities that prepare  
          students to become ministers of the religion, to enter upon some  
          other vocation of the religion, or to teach theological subjects  
          pertaining to the religion.  This provision would be applicable  
          to any postsecondary educational institution that receives or  
          benefits from state financial assistance or enrolls students who  
          receive state financial aid.

          Unlike federal regulations, it does not authorize exemption on  
          the basis that the educational organization demonstrate that it  
          is controlled by a religious organization, or on the basis of  
          requirements that faculty, students or employees of the  
          institution be members of, or espouse belief in, the controlling  
          organization's religion. Institutions controlled by a religious  
          organization would still be eligible for a Title IX exemption  
          based upon the broader conditions outlined in federal  

          Related report.  According to a recent report of the Human  
          Rights Campaign (HRC), Hidden Discrimination: Title IX Religious  
          Exemptions Putting LGBT Students at Risk, the rate of schools  
          seeking a religious exemption from Title IX has increased from  
          one school in 2013 to 43 schools in 2015. Since 2013, 56 schools  


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          have requested a religious exemption from Title IX provisions.   
          Thirty-three 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.   
          According to the HRC, exempted institutions are not required to  
          notify students of such exemption and this type of information  
          is currently only available through a Freedom of Information Act  
          request.  The HRC report recommends that the United States  
          Department of Education (USDOE) amend its regulations to require  
          schools to post specified exemption related information and a  
          statement that all other Title IX protections are still  
          applicable, and provide exemption related information on the  
          USDOE Web site, as specified. 

          California institutions?  According to the HRC report noted  
          above, since 2013, six California postsecondary educational  
          institutions have requested an exemption under the provisions  
          for religious organizations under Title IX.  These include Biola  
          University, Fresno Pacific University, Simpson University,  
          William Jessup University, John Paul the Great Catholic  
          University, and LABI College.  Based upon information available  
          from the CSAC, the first four of these institutions currently  
          participate in the Cal Grant Program.  

          Federal USDOE guidance/actions.  A federal guidance document  
          issued in 2014 by the Office of Civil Rights (OCR), Questions  
          and Answers on Title IX and Sexual Violence, clarified that the  
          Title IX discrimination prohibition extends to discrimination  
          against transgender and gender non-conforming students.  A  
          January 2016 letter from the USDOE OCR to concerned U.S.  
          Senators confirms that in recent years the Department has  
          received an increasing number of requests for religious  
          exemptions from Title IX. The letter also asserts that the OCR  
          is in the process of preparing a basic search tool on its  
          website so that applicants, students, parents, and others can be  
          better informed about which educational institutions have sought  
          and/or received a religious exemption and expects these  
          documents to be posted in the coming months.  


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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Assembly Appropriations Committee, any costs to  
          CSAC would be minor and absorbable.

          SUPPORT:   (Verified8/23/16)

          Equality California (source)
          American Civil Liberties Union
          Americans United for Separation of Church and State
          Anti-defamation League
          Azusa Pacific University 
          Association of Independent California Colleges and Universities
          Biola University
          California Baptist University 
          Los Angeles LGBT Center
          National Center for Lesbian Rights
          Point Loma Nazarene University 
          Westmont College
          William Jessup University

          OPPOSITION:   (Verified8/23/16)

          None received

           ASSEMBLY FLOOR:  45-28, 8/23/16
           AYES:  Alejo, Atkins, Baker, Bloom, Bonilla, Bonta, Burke,  
            Calderon, Campos, Chau, Chiu, Chu, Cooper, Dababneh, Daly,  
            Dodd, Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden,  
            Jones-Sawyer, Levine, Low, McCarty, Medina, Mullin, O'Donnell,  
            Quirk, Ridley-Thomas, Rodriguez, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Rendon
           NOES:  Achadjian, Travis Allen, Arambula, Bigelow, Brough,  
            Chang, Chávez, Dahle, Beth Gaines, Gallagher, Grove, Hadley,  
            Harper, Irwin, Jones, Kim, Lackey, Linder, Maienschein,  


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                                                                    Page  8

            Mathis, Melendez, Obernolte, Patterson, Salas, Steinorth,  
            Wagner, Waldron, Wilk
           NO VOTE RECORDED:  Brown, Cooley, Gray, Lopez, Mayes, Nazarian,  

          Prepared by:Lenin DelCastillo / ED. / (916) 651-4105
          8/29/16 10:34:40

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