Five legal issues raised by California SB 1146
The heading of the bill states, "The Equity in Higher Education Act among other things, prohibits a person from being subjected to discrimination on the basis of specified attributes, including sex, in any program or activity conducted by a postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. Existing federal law, known as Title IX of the Education Amendments of 1972, prohibits a person, on the basis of sex, from being excluded from participation in, being denied the benefits of, or being subject to discrimination under, any education program or activity receiving federal financial assistance. Both the federal and state laws do not apply to an educational institution that is controlled by a religious organization if the application would not be consistent with the religious tenets of that organization. Title IX provides a private right of action for violation of its provisions by a public postsecondary educational institution."
The bill is of significant importance for California's religious colleges and universities which may have to decide whether to refuse to comply and litigate the issue, forgo benefits from
significant state funding, acquiesce and modify their non-discrimination policies, close down, or move out-of-state.
Putting aside the issue of whether religious colleges "should" discriminate on the basis of gender, gender identity, gender expression, nationality, race or ethnicity, sexual orientation, there are five issues that need to be addressed in order to determine whether the law would actually pass constitutional muster.
1. Whether SB 1146 unconstitutionally imposes an untenable requirement as a condition of continued state funding (Cal Grants which students at religious colleges have been receiving for decades) on California's religious colleges and universities with the intention of pressuring them to compromise their religious beliefs?
- Whether the non-discrimination provision would trump the equal protection argument that the government cannot use an aspect of faith to discriminate in the provision of benefits (Cal Grant scholarship funds) to students who attend private religious schools (Agostini)?
Whether the state can treat the rights of religious institutions to discriminate based on religion (permitted) and sexual orientation (not permitted) differently. The logic is somewhat like an Escher staircase – can a state prohibit discrimination based on sexual orientation while simultaneously permitting discrimination based on religion when a tenet of that religion requires discrimination based on sexual orientation?
Whether the issue of excluding colleges from funding could be impacted by the pending Supreme Court case, Trinity Lutheran Church v. Pauley, set on the issue of whether religious schools (actually a preschool in that case) should be able to force a state government to abandon a state constitutional prohibition on funding to religious institutions and provide the religious school with generally available benefits?
Finally with regard to the private right of action to sue, whether the state can create a private right of action in state court to sue institutions that have received a Federal Title IX exemption by virtue of the fact that the institution operates in line with the Federal exemption?