BILL ANALYSIS Ó
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|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
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/16/16
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
specified.
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.
ANALYSIS:
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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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
controlled.
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
institution.
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.
Comments
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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
exemption.
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
regulations.
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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Mathis, Melendez, Obernolte, Patterson, Salas, Steinorth,
Wagner, Waldron, Wilk
NO VOTE RECORDED: Brown, Cooley, Gray, Lopez, Mayes, Nazarian,
Olsen
Prepared by:Lenin DelCastillo / ED. / (916) 651-4105
8/29/16 10:34:40
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