BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 195
Senator Florez
As Amended April 16, 2009
Hearing Date: April 28, 2009
Education Code
KB:jd
SUBJECT
Equity in Higher Education Act
DESCRIPTION
This bill would expand 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. This bill would also provide that a chief
administrative official who declares as true any material matter
in the assurance that he or she knows or reasonably should have
known to be false shall be subject to a civil penalty not
exceeding $50,000. This bill would allow any person acting in
the public interest to bring an action to recover the civil
penalty pursuant to this bill's provision.
BACKGROUND
Title IX of the Education Amendments of 1972 to the Civil Rights
Act of 1964 prohibits educational institutions that receive
federal financial support from engaging in sex-based
discrimination. Specifically, it provides, "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 or activity
receiving federal financial assistance." (20 U.S.C. Sec. 1681.)
Pursuant to Title IX, the former Department of Health,
Education and Welfare and its successor departments (Department
of Health and Human Services and Department of Education)
promulgated regulations implementing the statute. A policy
interpretation was subsequently issued to provide institutions
of higher education with guidance on the requirements for
(more)
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compliance with Title IX in intercollegiate athletic programs.
This policy interpretation is now known as the three-part test.
In order to meet the requirements of Title IX, a school must
show compliance with one of these three parts:
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(s).
While it applies to all aspects of educational opportunities,
Title IX's most notable success is opening the door to athletics
for girls and women. Because almost all public elementary and
secondary schools, and colleges and universities receive some
federal funding, their athletic programs are covered by Title
IX.
In 2003, the Legislature enacted AB 833 (Steinberg, Chapter 660,
Statutes of 2003), which established standards virtually
identical to those of Title IX, with one modification: in Test
2, "history" is defined to mean the past two years.
While current state and federal laws require postsecondary
educational institutions to provide assurances of compliance
with Title IX, 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.
This bill seeks to increase the amount of information required
in assurances of compliance with Title IX, and improve overall
compliance at the state's public and private postsecondary
educational institutions.
This bill was approved by the Senate Committee on Education on
April 15, 2009 and referred to this committee for review of the
provisions within the committee's jurisdiction.
CHANGES TO EXISTING LAW
Existing federal law prohibits discrimination on the basis of
sex for any educational program receiving federal assistance
through Title IX of the Educational Amendments of 1972 to the
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Civil Rights Act of 1964. (20 U.S.C. Sec. 1681 et seq.)
Existing state law , the Equity in Higher Education Act (Act),
provides that it is the policy of the state to afford all
persons, regardless of disability, gender, nationality, race or
ethnicity, religion, sexual orientation, or other specified
bases, equal rights and opportunities in the postsecondary
institutions of the state. (Ed. Code Sec. 66251.)
Existing state law 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 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.
(Ed. Code Secs. 66292-66292.2.)
Existing state law 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. (Ed. Code Sec. 66290.)
Existing state law requires a signature from "an appropriate
responsible official of the postsecondary educational
institution." (Ed. Code Sec. 66290.)
Existing law 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. (Ed. Code Sec. 66292.3.)
Existing law requires an educational institution to advise a
person who has filed 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. (Ed. Code Sec. 66292.3.)
Existing law provides that an appeal to the Board of Governors
of the CCC or Chancellor of the CSU does not have to be
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exhausted prior to the pursuit of civil law remedies. (Ed. Code
Sec. 66292.3.)
Existing law authorizes the Equity in Higher Education Act,
including all of the above described provision, to be enforced
through a civil action. (Ed. Code Sec. 66292.4.)
This bill would expand the information that must be included in
the assurance of compliance with Title IX currently provided by
postsecondary educational institutions to the California Student
Aid Commission.
This bil l would add 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 campus or location
of the postsecondary educational institution.
b)The annual number of complaints of prohibited discrimination
filed, 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 information against discrimination
provided to the students by the postsecondary educational
institution.
This bill would require the above information to be made
available for public inspection upon request.
This bill would specify that the signatory of the assurance is
the chief administrative official of the institution, and the
campus Title IX coordinator.
This bill would impose a requirement that a single assurance be
provided as a condition of receiving state financial assistance
or state student financial aid.
This bill would delete the requirement that the assurance be not
more than one page in length.
This bill would define "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.
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d)The president or highest ranking official of the private
postsecondary educational institution.
This bill would define "Title IX compliance officer" as the
employee designated by the postsecondary educational institution
to coordinate compliance with Title IX.
This bill would provide that a chief administrative official who
declares as true any material matter in the assurance that he or
she knows or reasonably should have known to be false shall be
subject to a civil penalty not exceeding $50,000.
This bill would provide that the civil penalty may be assessed
and recovered in a civil action brought in any court of
competent jurisdiction.
This bill would provide that civil actions pursuant to this
bill's provisions may be brought by any person in the public
interest.
COMMENT
1. Stated need for the bill
According to the author, there is a deficiency in the
enforcement of state and federal laws requiring compliance with
Title IX. Currently, the California Student Aid Commission
(CSAC) requires postsecondary educational institutions to submit
a one page document called the Cal Grant Institutional
Participation Agreement (IPA). The IPA is the managing contract
between the CSAC and Cal Grant participating institutions.
Postsecondary education institutions that would like to disburse
Cal Grant funds to eligible students on their campuses must have
an IPA on file with the CSAC.
Institutions use the IPA to apply for initial participation,
renewal, change of ownership or structure, or to update a
current approval.
The IPA contains a check box that states, "This Institution
meets the requirements of Section 66290 of the [California
Education Code]." Postsecondary institutions are not required
to submit any substantive information as to how they are
complying with federal and state laws regarding gender equity in
higher education; they need only check off the box. This bill
seeks to increase the amount of information required in
assurances to ensure that public and private postsecondary
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educational institutions are complying with federal and state
law.
2.This bill would impose civil penalties on chief administrative
officials for knowingly or negligently providing material
misrepresentations in assurances
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.
(34 C.F.R. Section 106.8.) 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.
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 because it decreases the amount of assistance
available. However, committee staff has no information showing
any financial aid has ever been withheld from a California
postsecondary educational institution.
As previously stated, assurances currently consist of a check
box, and a signature line on the IPA for the Cal Grant program.
The assurance is required to be signed by "an appropriate
responsible official of the postsecondary educational
institution." (Ed. Code Sec. 66290.)
In addition to increasing the amount of information provided on
assurances, this bill would require that the assurance be signed
by the Title IX compliance officer of the applicable campus or
location of the postsecondary educational institution, if any,
and the "chief administrative official." "Chief administrative
official" would be defined as one of the following: (1) the
President of the University of California; (2) the Chancellor of
the California State University; (3) the president of a campus
of the California Community Colleges; or (4) the president or
highest ranking official of the private postsecondary
educational institution. "Title IX compliance officer" means
the employee designated by the postsecondary educational
institution to coordinate compliance with Title IX of Education
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Amendments o f 1972 pursuant to federal regulations implementing
that law.
This bill would also impose a new civil penalty on a chief
administrative official who knowingly or negligently declares as
true any material matter required to be in the assurance. The
negligent standard is intended to ensure that individuals
ultimately responsible for the school's Title IX compliance
(i.e., the president, chancellor, or other high ranking
official) is conducting due diligence in ensuring that the
school is, in fact, compliant, and not merely checking off a
box.
The negligence standard is not normally used to assess civil
penalties on individuals, especially where the person bringing
the action has not suffered direct injury. However, omitting
the negligence standard in this case would negate the purpose of
the bill and create a loophole where chief administrative
officials could avoid accountability. This committee may wish
to consider whether chief administrative officials should be
required to conduct due diligence in completing the assurance
and attesting to its accuracy.
The suggested amendment would be as follows:
On page 3, line 27, after the second "or" insert "after
conducting due diligence,"
This would clarify that the chief administrative official has an
affirmative duty to conduct due diligence when completing and
submitting the assurance. If an official fails to carry out due
diligence and falsely represents material matter that he or she
should have known to be false, then he or she will be liable for
the civil penalty.
The civil penalties available pursuant to this bill would be
separate from any damages that may already be recovered under
the Equity in Higher Education Act. (Ed. Code Sec. 66292.4.)
In addition, individuals have an implied private right of action
under Title IX. (See Cannon v. University of Chicago (1979) 441
U.S. 677 (holding that an individual has a private right of
action under Title IX, and may recover monetary damages in such
actions).)
3.This bill would provide that civil penalties may be recovered
by any person acting in the public interest
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Generally, civil enforcement statutes allow civil penalties to
be recovered only by prosecutors, not by private litigants.
Private plaintiffs who have been damaged by a statutory
violation usually are restricted to traditional damage suits, or
where damages are difficult to prove, to "statutory damages" in
a specified amount or range. (See, e.g., Unruh Civil Rights
Act, Civ. Code Sec. 52, allowing statutory damages in a minimum
amount of $4,000 per violation to prevailing private litigants
in actions alleging denial of equal access or other forms of
discrimination.)
This bill would allow the private recovery of civil penalties as
opposed to statutory damages. Civil penalties are usually
recovered by the Attorney General acting on behalf of the state.
However, in this instance, requiring the Attorney General to
pursue and recover civil penalties through a civil action would
raise conflict of interest issues with the University of
California and California State University, both of whom the
Attorney General represents. Further, the recovery of civil
penalties by private litigants does have some precedent in
existing law. The Unruh Civil Rights Act allows either the
victim of a hate crime or a public prosecutor to bring an action
for a civil penalty of $25,000 against the perpetrator of the
crime. (Civ. Code Secs. 51.7, 52.) In addition, the Private
Attorney General Act of 2004 ("PAGA") codified in Labor Code
Section 2698, et seq. allows a private citizen to pursue civil
penalties on behalf of the State of California Labor and
Workforce Development Agency ("LWDA"). However, unlike these
existing statutes providing for private recovery of civil
penalties, this bill would not require that a person be an
"aggrieved party," or in other words, suffer actual injury to
recover the civil penalty. Rather, anyone could bring an action
in the public interest. Because this bill is intended to
promote the general public interest in ensuring compliance with
state and federal gender equity laws, this committee may wish to
consider whether a portion (at least 50 percent) of the civil
penalties recovered in these actions should be distributed to
the state's General Fund or other specified fund to be used for
enforcement of and education on the state's gender equity laws.
The suggested amendment would be as follows:
On page 3, line 35, after the period insert "Civil penalties
recovered by a private party acting in the public interest shall
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be distributed as follows: 50 percent to the General Fund, and
50 percent to the private party."
This is similar to provisions in the PAGA, which require that 75
percent of the civil penalties recovered be distributed to the
Labor Workforce Development Agency for the enforcement of labor
laws and education of employers and employees on their rights
and responsibilities under the Labor Code. In this manner, the
bill would ensure that the public reaps some benefit from
assessed civil penalties, and that private parties who never
suffered direct injuries do not get to retain all of the monies.
4. Suggested technical amendment
This bill would require assurances to include "a description of
any information against discrimination, as described in Section
66271.8, provided to students by the postsecondary educational
institution." However, Section 66271.8 generally refers to
equivalent programs for male and female students in public
postsecondary institutions. According to the author's office,
this cross-reference is a technical error. This cross-reference
should instead be to 34 Code of Federal Regulations Section
106.9, which mandates the dissemination of the school's
anti-discrimination policies and practices.
The following suggested amendment would correct this error:
On page 3, line 19, strike "Section 66271.8," and insert "34
C.F.R. Section 106.9."
Support : American Civil Liberties Union; Equal Rights
Advocates; California Teachers Association; California
Communities United Institute
Opposition :None Known
HISTORY
Source :Author
Related Pending Legislation :
SB 248 (Oropeza) would require a school district, the president
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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 the Senate Education Committee on April 22, 2009.
AB 685 (Davis) 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 Appropriations
Committee.
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 the UC to carry out
new responsibilities concerning gender equity. SB 1578 was
never heard.
AB 322 (Oropeza, Chapter 386, Statutes of 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.
Prior Vote :
Senate Education Committee (Ayes 5, Noes 1)
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