SACRAMENTO – Yesterday the California Assembly passed SB 1146 (48 to 28 with 7 abstaining), sending the amended higher education anti-discrimination bill back to the Senate for a concurrence vote to take place before August 31.
SB 1146 has undergone multiple significant revisions, which had previously included language that would have prohibited religious higher education institutions from requiring attendance at religious services, and would have given LGBT students and staff members a right to sue for monetary damages and then injunctions if they felt that religious institutions were acting in a discriminatory manner. Language requiring Title IX exempt institutions to report on student disciplinary actions was removed in the August 19, 2016 version of the bill.
The current version, as amended on August 19 and which passed the Assembly, requires institutions that have sought an exemption from federal Title IX non-discrimination provisions to disclose the fact that they have such a waiver through postings in prominent locations on campus and various printed materials.
The bill also requires that all higher education institutions must submit copies of any grant of an exemption to the state Student Aid Commission.
In analysis, whether an institution has been granted a federal Title IX exemption is a matter of public record. Institutions that apply for Title IX exemptions will likely claim that this legislation is an effort to “shame” the institutions and ultimately adversely impact them in terms of recruiting students, fundraising, and placing them at a distinct disadvantage.
Not all religious higher education institutions have applied for Title IX exemptions yet they maintain policies that could be seen as discriminatory. They have not been sued, to date, for violating Title IX non-discrimination provisions most likely because the autonomy of religious institutions has generally been recognized by the courts. There are numerous laws in place to protect employees from work discrimination and other forms of abuse. The Constitutional free exercise of religion, freedom of association, and other rights are believed to supersede statutory policy at the federal or state level. Non-exempt institutions are not required to take any action under SB 1146.