BILL ANALYSIS                                                                                                                                                                                                    



                                                                    AB 1888


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          Date of Hearing:  March 15, 2016


                       ASSEMBLY COMMITTEE ON HIGHER EDUCATION


                                 Jose Medina, Chair


          AB 1888  
          (Low) - As Introduced February 11, 2016


          SUBJECT:  Cal Grants:  nondiscrimination


          SUMMARY:  Prohibits an institution participating in the Cal  
          Grant Program from discriminating against a student or employee  
          on the basis of a protected class.  Specifically, this bill:  


          1)Requires, as a condition of voluntary participation in the Cal  
            Grant Program, each Cal Grant participating institution to,  
            commencing with the 2017-18 academic year, certify to the  
            California Student Aid Commission (CSAC) in the institution's  
            participation agreement (IPA) for the Cal Grant program both  
            of the following:



             a)   The institution shall not subject a student or employee  
               of the institution to discrimination on any basis listed in  
               Education Code (EDC) Section 220, including sex, sexual  
               orientation, gender identity, or gender expression.



             b)   The institution shall not apply for, or receive, a  
               waiver by the United States Department of Education (USDE)  








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               from federal nondiscrimination requirements for the receipt  
               of funds under Title IV of the federal Higher Education Act  
               of 1965, as amended (20 U.S.C. Sec. 1070 et seq.).
          EXISTING STATE LAW 


          1)Establishes the Equity in Education/Higher Education acts to  
            prohibit, among other protections, 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 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 (EDC Sections 200 and 66270).  An exemption is  
            provided 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.  
            (EDC Sections 221 and 66271)   


          2)Establishes the Unruh Civil Rights Act to provide free and  
            equal accommodations, advantages, facilities, privileges, or  
            services in all business establishments regardless of sex,  
            race, color, religion, ancestry, national origin, disability,  
            medical condition, genetic information, marital status, or  
            sexual orientation. (Civil Code Section 51) 


          EXISTING FEDERAL LAW establishes Federal Title IX of the  
          Education Amendments of 1972 (Title IX) to prohibit  
          discrimination, on the basis of sex, in educational programs or  
          activities receiving Federal financial assistance.  Various  
          exemptions are provided, including for fraternities and  
          sororities, military institutions, traditional male or female  
          institutions, and institutions controlled by religious  
          organizations. (Title 20 U.S.C. Sections 1681-1688)









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          1)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 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  
               C.F.R.  106.12)


          FISCAL EFFECT:  Unknown.


          COMMENTS:  Purpose of this bill.  According to the author, this  
          bill upholds California's commitment to nondiscrimination by  
          requiring all Cal Grant participating institutions to certify to  
          CSAC that they shall not discriminate on the basis of a  








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          protected class, including, sex, sexual orientation, gender  
          identity, or gender expression.  The author argues that allowing  
          religion to be used as an instrument for discrimination goes  
          against California public policy and should not be supported  
          with state funding.


          Background.  According to the Human Rights Campaign (HRC) report  
          Hidden Discrimination: Title IX Religious Exemptions Putting  
          LGBT Students at Risk, the Civil Rights Act of 1964 prohibits  
          discrimination in public educational institutions on the basis  
          of race, color, national origin, sex, and religion.  However,  
          Title IV of the Civil Rights Act, which prohibits public and  
          private educational institutions from accepting federal funding  
          for noncompliance, is limited to race, color and national  
          origin.  Title VII of the Civil Rights Act prohibits  
          discrimination, including on the basis of sex, in employment.   
          According to HRC, courts have increasingly allowed claims of  
          employment discrimination based on an employee's sexual  
          orientation or gender identity under Title VII sex  
          discrimination provisions.   


          Title IX was enacted to protect students from discrimination on  
          the basis of sex.  An exemption is provided for religious  
          colleges that fall within specified guidelines. Federal guidance  
          issued in 2014 clarified that the Title IX discrimination  
          prohibition "extends to claims of discrimination based on gender  
          identity or failure to conform to stereotypical notions of  
          masculinity or femininity." In response to the USDE guidance, a  
          number of religious institutions have applied for exemption to  
          Title IX.


          According to the HRC report, six California colleges have  
          requested a Title IX exemption from the USDE.  Based on  
          information available from CSAC, four of these institutions  
          participate in the Cal Grant Program: Biola University, Fresno  
          Pacific University, Simpson University, and William Jessup  








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          University.


          In requesting approval of an exemption to Title IX, Biola  
          University cites the governing board's "Statement on  
          Transsexualism and Transgenderism" that provides, in part, Biola  
          University, in employment and student life "will not support  
          persistent or exaggerated examples of cross-dressing that are  
          grounded in the fundamental rejection of biological birth sex,  
          or other actions or expressions that are deliberately discordant  
          with birth sex, or advocacy of such viewpoints that are  
          inconsistent with the University's theological positions."   
          Biola further notes that any individual who violates Biola's  
          Standards of Conduct is subject to discipline, including  
          possible dismissal from the university.    


          Fresno Pacific University's student handbook outlines the Values  
          and Behavioral Standards that all students are required to abide  
          by, and states, in part "Certain sexual behaviors are  
          prohibited.  These include but are not limited to: fornication,  
          adultery, and same-sex romantic relations." In requesting USDE  
          grant an exemption, the university writes "Fresno Pacific  
          University has admitted openly gay students who are willing and  
          choose to live in accordance with the Confession of Faith and  
          the Fresno Pacific Idea.  However, in keeping with our biblical  
          beliefs regarding the morality of actions, we cannot in good  
          conscience support or encourage an individual to live in  
          conflict with biblical principles in any area, including gender  
          and gender identity." 


          According to the Human Rights Campaign report, nationwide 56  
          schools have requested an exemption, 33 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  








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          facilities, and athletics. 


          Arguments in support.  Equality California (EQCA) is the sponsor  
          of this bill and argues that religious protection should not be  
          used to justify discrimination.  According to EQCA, overly broad  
          religious exemptions leave room for individuals and institutions  
          to discriminate depending on how they apply, or choose not to  
          apply, their religious beliefs.  According to EQCA, this  
          discrimination can take many forms, from the termination of  
          employees or expulsion of students based on sexual orientation  
          or gender identity, to forbidding faculty from talking about  
          subjects that don't conform to the school's ideology.  The  
          American Civil Liberties Union of California argues that, by  
          prohibiting funding to academic institutions that seek to  
          discriminate in a private setting, this bill makes Cal Grant  
          funding consistent with California public policy.   


          Comments of concern.  The Association of Independent California  
          Colleges and Universities (AICCU) and Seyfarth Shaw LLP have  
          expressed concern regarding this proposal.  According to AICCU,  
          the Cal Grant program was started to allow low-income students  
          to attend private, nonprofit institutions of their choice. By  
          eliminating this student choice, this bill could deny the lowest  
          income students access to the same quality education that their  
          better-off peers have access to and may be denying them a spot  
          at a California institution all together.  Seyfarth Shaw LLP  
          argues this bill conflicts with the right of "private choice"  
          recognized by the U.S. Supreme Court in Zelman v.  
          Simmons-Harris, 536 U.S. 639 (2002).  Seyvarth Shaw LLP also  
          argues that conditioning Cal Grants on a federally-guaranteed  
          right to seek a Title IX waiver is not legally justifiable for a  
          number of reasons; including the conflict it creates with  
          federal law. 


          Amendments and Issues to Consider.  The author and committee may  
          wish to consider the following issues and suggested amendments:








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          1)Committee staff suggests an amendment, on page 2, line 9 to  
            change the reference to the EDC nondiscrimination requirements  
            in the Higher Education Equity Act (Section 66270).  


          2)Committee staff suggests an amendment, on page 2, line 15 to  
            correct the reference to federal law, to reflect Title IX of  
            the Education Amendments of 1972.


          3)As previously outlined, exceptions to nondiscrimination  
            requirements exist in state and federal law for specific  
            college and university activities, such as membership of  
            fraternities and sororities, granting of characteristic-based  
            scholarships, and enrollment at traditionally all-female, or  
            -male colleges. The author may wish to work with Legislative  
            Counsel to ensure this bill is consistent with existing  
            unlawful discrimination provisions governing colleges and  
            universities.


          4)This bill would prohibit an institution from applying for, or  
            receiving a Title IX waiver from the USDE.  Committee staff is  
            aware of at least one California-based college that obtained a  
            Title IX waiver and subsequently surrendered the waiver after  
            determining that the institution could comply with the  
            provisions of Title IX.  The author may wish to clarify this  
            provision to allow for an institution to relinquish its  
            waiver.  Further, moving forward the author may wish to  
            consider, if an institution is compliant with California's  
            nondiscrimination laws, is it necessary to also prohibit an  
            institution from seeking a Title IX exemption?        


          REGISTERED SUPPORT / OPPOSITION:










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          Support


          American Civil Liberties Union of California


          Equality California




          Opposition


          None on File




          Analysis Prepared by:Laura Metune / HIGHER ED. / (916) 319-3960