BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: SB 195
AUTHOR: Florez
AMENDED: April 13, 2009
FISCAL COMM: Yes HEARING DATE: April 15, 2009
URGENCY: No CONSULTANT: Lynn Lorber
NOTE: This bill has been referred to the Committees on
Education and Judiciary. A "do pass" motion should include
referral to the Committee on Judiciary.
SUBJECT : Title IX and Postsecondary Educational
Institutions
SUMMARY
This bill expands the information that must be included in
the assurance of compliance with Title IX currently
provided by postsecondary educational institutions to the
Student Aid Commission, and adds a $50,000 civil penalty
for knowingly providing false information.
BACKGROUND
Current federal law (Title IX of the Education Amendments
of 1972 to the 1964 Civil Rights Act) provides that, in
part, "no person in the United States shall, on the basis
of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
educational program of activity receiving Federal financial
assistance." In order to be in compliance with Federal
Title IX, a school must show compliance with one of these
three parts. The federal tests are:
1) Athletic participation of women and girls is
proportionate to enrollment.
2) The school has a history and continuing practice of
program expansion for women or girls.
3) The school is fully meeting female athletes' interests
and abilities in its present athletic program.
SB 195
Page 2
Current state law (AB 833, Steinberg, Chapter 660, 2003)
establishes standards virtually identical to those of
Federal Title IX, with one modification: in Test 2,
"history" is defined to mean the past two years.
Title IX applies to all aspects of educational
opportunities, not just athletics.
Current state law, the Equity in Higher Education Act,
requires a postsecondary educational institution, prior to
receipt of any state financial assistance or state student
financial aid, to provide assurance that each program or
activity conducted by the institution will be in compliance
with state laws prohibiting discrimination on the basis of
sex. The current assurance is essentially a check box and
signature line on page 17 of the 26-page Institutional
Participation Agreement for the Cal Grant Program, required
by the California Student Aid Commission.
In addition to the compliance requirements of Title IX and
state law, the University of California (UC), California
State University (CSU) California Community Colleges, and
many private institutions each have policies regarding
discrimination. CSU, UC and CCC campuses (and likely many
private institutions) currently comply with the federal
Equity in Athletics Disclosure Act and report annual
athletic participation and equity information to the Office
of Postsecondary Education in the U.S. Department of
Education. National Collegiate Athletic Association (NCAA)
campuses also report gender equity information to the NCAA.
In addition, the CSU continues to publish an annual
"Voluntary Self Monitoring Report regarding Equal
Opportunity in Athletics for Women Students" that conforms
to a 1993 consent decree between the California National
Organization for Women and the CSU that ended by mutual
agreement in 2000.
Current state law:
1) Requires the following people or entities to have the
primary responsibility for ensuring that programs and
activities are free from discrimination:
a) The governing board of a community college
district, with the Chancellor's office of the
California Community Colleges (CCC) having
SB 195
Page 3
responsibility for monitoring the compliance of
each district.
b) The Chancellor of the CSU and the president
of each campus.
c) The President of the UC and the chancellor
of each campus.
2) Authorizes a party to a written complaint of
prohibited discrimination to appeal the action taken
by the community college district or president of a
campus of the CSU, to the Board of Governors of the
CCC or the Chancellor of the CSU.
3) Requires an educational institution to advise a person
who has file a complaint that civil law remedies,
including but not limited to, injunctions, restraining
orders, or other remedies or orders may also be
available to complainants. The institution is
required to make this information available by
publication in appropriate informational materials.
4) Provides that an appeal to the Board of Governors of
the CCC or Chancellor of the CSU does not have to be
exhausted prior to the pursuit of civil law remedies.
5) Authorizes the Equity in Higher Education Act to be
enforced through a civil action.
ANALYSIS
This bill expands the information that must be included in
the assurance of compliance with Title IX currently
provided by postsecondary educational institutions, and
adds a $50,000 civil penalty for knowingly providing false
information or having a willful ignorance of non-compliance
with Title IX. Specifically, this bill:
1) Adds the following specific components, at a minimum,
to the assurance required as a condition of receiving
state financial assistance or state student financial
aid:
a) Information regarding compliance for each
SB 195
Page 4
campus or location of the postsecondary
educational institution.
b) The annual number of complaints of
prohibited discrimination filed on appeal,
including the number of written complaints
received by each campus or location of the
postsecondary educational institution.
c) The annual number of civil actions filed
pursuant to current law.
d) A description of any public information or
awareness campaigns against discrimination
provided by the postsecondary institution,
including discrimination on the basis of
characteristics other than sex.
2) Narrows the scope of who is responsible for signing
the assurance to specify that the signatory is the
chief administrative official of the institution (see
# 9 below) and the campus Title IX coordinator.
Current law requires a signature from "an appropriate
responsible official of the postsecondary educational
institution."
3) Adds a civil penalty of up to $50,000 for a chief
administrative official who declares as true any
information required pursuant to this bill that he or
she knows, or should have known, to be false.
4) Requires the civil penalty to be exclusively assessed
and recovered by the Attorney General in a civil
action brought in the name of the people of the State
of California in any court of competent jurisdiction.
5) Requires the information described in #1 to be
available for public inspection at each campus or
location upon request.
6) Clarifies that institutions must comply with federal
anti-discrimination laws, in addition to state
anti-discrimination laws.
7) Deletes the authority and imposes a requirement that a
single assurance be provided as a condition of
SB 195
Page 5
receiving state financial assistance or state student
financial aid.
8) Deletes the requirement that assurance be not more
than one page in length.
9) Defines "chief administrative official" as:
a) The President of the University of
California.
b) The Chancellor of the California State
University.
c) The president of a campus of the California
Community Colleges.
d) The president or highest ranking official of
the private postsecondary educational
institution.
10) Defines "Title IX compliance officer" as the employee
designated by the postsecondary educational
institution to coordinate compliance with Title IX.
STAFF COMMENTS
1) Public and private institutions . This bill applies to
all postsecondary institutions that accept state aid
or whose students accept state financial aid,
including both California's public colleges and
universities and private institutions (including
proprietaries).
2) Need a higher level of compliance ? While current
state and federal laws require postsecondary
educational institutions to provide assurances of
compliance with Title IX and methods of filing
complaints are available, lawsuits continue to be
filed against these institutions. For example, the
California State University (CSU) at Fresno has lost
judgments or entered into settlement agreements since
2007 totaling over $17 million, and faces another
gender discrimination lawsuit filed in March of 2009.
It is staff's understanding that damages are paid from
CSU's risk management fund, which receives
contributions from individual campuses. Should this
SB 195
Page 6
bill be limited in scope to apply only to
postsecondary educational institutions that have had a
certain number of these complaints filed against them
or that have lost or settled gender discrimination
lawsuits within the past five years?
3) Complaint processes . Title IX requires each recipient
to designate at least one employee to serve as a Title
IX coordinator, and to adopt and publish internal
grievance procedures to promptly and equitably resolve
complaints alleging discrimination on the basis of
sex. All campuses of the UC, CSU, CCC, and private
institutions that receive federal aid should have a
Title IX coordinator, and the public institutions
likely also have a Title IX coordinator at each
segment level.
Anyone who believes that an education institution that
receives federal financial assistance has
discriminated against someone may file a complaint
with the federal Office of Civil Rights.
4) Current penalties . Postsecondary educational
institutions that do not comply with Title IX are at
risk of losing federal and state assistance or federal
and state student aid. This existing penalty
primarily affects students. Staff has no information
showing any financial aid has ever been withheld from
a California postsecondary educational institution.
5) Civil penalty . According to the U.S. Department of
Justice's Title IX Legal Manual, the Supreme Court has
established that individuals have an implied private
right of action under Title IX. The most common form
of relief sought and obtained through a private right
of action is an injunction ordering a recipient to do
something. In addition to agency enforcement
mechanisms, private individuals have an implied right
of action under Title IX and damages may be available
in such lawsuits. California's Equity in Higher
Education Act is enforceable by civil action. This
bill provides for a $50,000 civil penalty against
chief administrative officials of postsecondary
educational institutions. This bill does not provide
for the dispensation of any recovered civil penalty.
6) Vague language . This bill requires postsecondary
SB 195
Page 7
educational institutions to provide "information
regarding compliance" and a description of any "public
information or awareness campaigns" against
discrimination. Should this bill be more specific
about what type of information regarding compliance
must be provided? Is posting of anti-discrimination
information at various locations on a campus
considered public information? What constitutes an
awareness campaign? Should this bill be amended to
require campuses to provide information about their
anti-discrimination policies and procedures?
This bill also requires institutions to provide the annual
number of complaints of prohibited discrimination
filed on appeal, including the number of written
complaints received by each campus or location of the
postsecondary educational institution. Should this
bill be amended to require information about all
complaints, not just those filed on appeal?
Additionally, the section relative to appeals appears
to apply only to the CSU and CCC.
7) Related legislation . SB 248 (Oropeza, 2009) requires
a school district, the president or chief executive
officer of a CCC campus, and the president of a campus
of the CSU to place on their Internet Web site, and
post on the entrance to the gymnasiums of the schools,
colleges, or universities, as the case may be, and in
the locker rooms, the list of rights accorded to
pupils under Title IX. SB 248 also requests the
chancellor of a campus of the University of California
to take the same action. SB 248 is scheduled for
hearing in this Committee on April 22, 2009.
AB 685 (Davis/ 2009) requires the School Facilities
Planning Division of the California Department of
Education to include, as part of its review of an
application for new construction plan approval, a
determination of whether the proposed project would
comply with Title IX. AB 685 is pending in the
Assembly Education Committee.
8) Prior legislation . SB 1578 (Florez, 2008) would have
established California Title IX for purposes of
monitoring college athletics gender equity on
postsecondary campuses that have NCAA intercollegiate
programs, and would have required the CSU and request
SB 195
Page 8
the UC to carry out new responsibilities concerning
gender equity. SB 1578 was never heard.
AB 322 (Oropeza, Chapter 386, 2005) required the California
Department of Education to post on its Web site in
English and Spanish the rights specified under Title
IX by July 1, 2006.
SUPPORT
American Federation of State, County and Municipal
Employees
California Communities United Institute
California Teachers Association
Commission on the Status of Women
OPPOSITION
None received.