Tuesday, June 28, 2016

Legal Backgrounder on California Senate Bill 1146 (SB 1146)

There is currently a bill--Senate Bill 1146, aka SB 1146--pending in the California legislature, which aims at stripping Christian colleges and universities in California of their current religious exemption from the California state Equity in Education Act.

The Equity in Education Act is a 1982 California law which was modeled on the federal Title IX legislation, and which aimed at combating gender discrimination in California colleges. The law stripped institutions which discriminated on the basis of gender of all state funding. The Equity in Education Act was subsequently amended to disallow not only discrimination on the basis of gender, but also discrimination on the basis of the full gamut of protected categories (race, national origin, sexual orientation, gender identity, gender expression, and disability).

The Equity in Education Act, however, allowed, and currently still allows, religious exemptions from the requirements of the law for those colleges for which compliance would represent a violation of their religious beliefs. SB 1146 aims to limit the religious exemption from the Equity in Education Act only to those programs which actually train religious ministers. All other programs would be made subject to the requirements of the law. The purpose of this post is to provide concise legal background on the applicable federal and state law and on SB 1146 itself.

Federal Law

The federal Title IX law is a part of 1972 federal legislation (20 U.S.C. 1681-1688), which prohibited discrimination against women in any educational institutions or programs funded by the federal government. Exemptions from Title IX are granted if an institution is considered to be controlled by a religious organization. For the purposes of Title IX, an institution is considered to be controlled by a religious organization (and thus eligible for an exemption) if one or more of the following conditions is met:

  • the purpose of the institution or the department is to train ministers of religion or to teach theology 
  • faculty, students, or employees are required to adhere to be members of the religious organization or to express personal belief in a statement of faith of the religion 
  • the charter and catalog of the institution state either that it is controlled by a religious organization or that it is committed to a particular set of religious beliefs; the organization’s governing board is comprised of representatives of controlling religious organization; and that significant funding is derived from the controlling religious organization. 
The scope of the Title IX law was subsequently restricted in the 1984 Supreme Court decision of Grove City College v. Bell. In this case, Grove City College, a small Christian college in Pennsylvania, had appealed a ruling by the Department of Education which held that since some of their programs accepted Basic Educational Opportunity Grants the entire institution was bound by Title IX requirements. Grove City College held that only the particular programs which received federal government were governed by Title IX. The Supreme Court agreed with Grove City College. 

However, this narrowing of Title IX was subsequently reversed by the Civil Rights Restoration Act of 1988, by which Congress changed Title IX so that any institution accepting any federal money at all was bound to adhere to all Title IX requirements. 

Title IX deals only with gender discrimination. However, in 2014 and 2016, the Department of Education of the Obama Administration released guidelines which held that Title IX “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” In response to this, a number of California colleges (along with many colleges nationally) have filed for religious exemptions from Title IX. Among these colleges are Biola University, Fresno Pacific University, William Jessup University, and Simpson University. 

Another body of federal law (besides Title IX) which forbids discrimination by recipients of federal funds for education is Title VI (U.S.C. 2000d et seq.), which was enacted by the Civil Rights Act of 1964. This law forbids discrimination based on race, color, or national origin. There are no exemptions from Title VI.

California Law

In addition to the federal laws, there are also a number of California laws which deal with discrimination in education.

The Equity in Education/Higher Education Act (California Education Code 200 et seq.), which was based on the federal Title IX, first enacted in 1982, and subsequently amended a number of times, prohibits institutions receiving public funds for discriminating against members of any of California’s protected classes (nationality, ethnicity, gender, gender identity, gender expression, sexual orientation, or disability). Significantly, this law is allowed to be enforced through private civil action - that is, not only may the law be used by the state to deny funds to non-exempt colleges, it may be used by plaintiffs who allege discrimination on the part of these colleges. The original version of the Equity in Education Act allowed exemptions for religious colleges. These exemptions were modeled on the exemptions of the federal Title IX law, which are still in place.

California Government Code 11135, which is California’s version of the federal Title VI, prohibits any program or organization which receives public funds from using the categories of race, country of origin, ethnicity, age, sex, sexual orientation, color, genetic information, or disability to limit access. This law allows for no religious exemptions.

California SB 1146

The proposed law, California Senate Bill 1146 (SB 1146), authored by Senator Richard Lara (D), which passed the California Senate on a vote of 26-13, and is currently pending in the California Assembly, proposes to eliminate religious exemptions for all institutions except for religious institutions specifically involved in the training of ministers. 

The principal impact of the bill, if it were passed, would be three-fold:
  • Any exempt institution is subjected to an onerous burden of reporting requirements. 
  • Any non-exempt institution which discriminates on the basis of categories protected by California law will be prohibited from receiving any state funds. In addition, students of these non-exempt institutions will lose all state financial aid. 
  • Any non-exempt institution may be sued by private parties for alleged violations of non-discrimination law. 
It is actually the third of these provisions which is the most dangerous, in that the loss of a religious exemption opens the door to a myriad of lawsuits against these Christian colleges for adhering to their religious beliefs.

The text of the proposed law can be found here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160SB1146

I will write a follow-up post later on the ways in which this bill represents a substantial infringement of the equal protection and religious liberty rights of Christian citizens of California and why every citizen who cares about the Constitution should oppose the bill.