California legislation seeks to prevent LGBT discrimination in higher education
The California Legislature is considering two bills that would require colleges and universities to implement broad non-discrimination policies or face the loss of public grant money (AB 1888) or face litigation by students who claim they are discriminated against on the basis of sexual orientation even if the institution has obtained a waiver from the non-discrimination provisions of Title IX (SB 1146).
AB 1888 (Low), as amended May 2, 2016, would condition state grant money on the promise that institutions will not subject applicants, students, or employees to discrimination on the basis of sex, sexual orientation, gender identity, or gender expression, nationality, race or ethnicity, religion, or any other characteristic that is "contained in the prohibition of hate crimes" in Section 422.6(a) of the California Penal Code. Further, these institutions will have to certify that they will not apply for or receive a waiver from the U.S. Department of Education from federal non-discrimination regulations under Title IX. Institutions that do have a Title IX exemption would need to relinquish it by the beginning of the 2017-18 academic year.
AB 1888 does allow educational institutions to continue to favor members of a particular religion as long as the school is controlled by a religious organization and "directed toward the propagation" of that particular religion. But such institutions would not be able to receive grant money and continue to discriminate by other characteristics.
Cal Grants, which do not need to be repaid, are state funds available to students who meet certain financial and academic requirements, and can pay up to $9,084 per year at independent colleges and universities, including religious institutions.
Some religious organizations which are dependent on CalGrants are concerned that the non-discrimination provisions by sexual orientation will run contrary to current policies and are actively opposing the legislation. On the other hand, secular advocacy groups are concerned that taxpayer funds could go to institutions with discriminatory policies.
A companion bill in the California Senate, SB 1146 (Lara), the "Equity in Higher Education Act," would require institutions that seek a Federal Title IX exemption to disclose this fact. It would also permit individuals who are denied equal rights or opportunities by gender identity, gender expression, or sexual orientation to file lawsuits against an institution that claims a Title IX exemption. Institutions that are specifically designed to prepare students to become ministers, teach theology, or enter another religious vocation would be exempt.
According to the author of SB 1146, the bill is designed to provide a legal remedy for students, for instance, who are admitted to a religious institution before revealing that they are LGBT and are later denied readmission or housing or face harassment.
On the other hand, the California Catholic Conference warns that the bill is vague and creates a state-level "civil cause of action for violation of the Equal Protection Clause and provisions of the Due Process" clause even if an institution is in compliance with federal law. According to the CCC, "this coercive mandate to waive federally-protected statutory and constitutional rights is simply indefensible."
The U.S. Department of Education maintains a list of institutions that have sought and/or received Title IX exemptions and this link also includes copies of letters written to and from the universities.
We will continue to track the progress of both of these bills.