BILL ANALYSIS Ó
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:
AB 1888
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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