BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
SB 777 S
Senator Kuehl B
As Amended April 9, 2007
Hearing Date: April 17, 2007 7
Education Code 7
KB:jd 7
SUBJECT
Discrimination: The California Student Civil Rights Act
DESCRIPTION
This bill would revise the current list of prohibited bases
of discrimination and the kinds of prohibited instruction,
activities, and instructional materials in the Education
Code, and instead would refer to the protected
characteristics contained in the definition of hate crimes
in the Penal Code. This bill would also define disability,
gender, nationality, race or ethnicity, religion, and
sexual orientation for this purpose.
This bill would change the current references to
"handicapped" individuals in the Education Code to instead
refer to individuals with physical disabilities.
BACKGROUND
The right to a public education in California is a
fundamental right fully guaranteed and protected by the
California Constitution. In recognition of the importance
of education in our society, the Legislature has enacted
numerous laws designed to promote equality in educational
opportunities and to safeguard students against
discriminatory practices in public schools.
The Student Safety and Violence Prevention Act of 2000
(Act) [AB 537, Kuehl et al., Ch. 587, Statutes of 1999],
created an expansive law banning discrimination in schools
(more)
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against individuals of specified categories known as
"protected classes." This law applies to all
publicly-funded educational programs and activities and
includes a prohibition of discrimination based on sexual
orientation, gender identity and association with another
person who is protected under these categories.
Although the Act created broad protections, there are
additional nondiscrimination statutes in the Education Code
that vary in lists of protected classes they cover. This
bill is intended to amend these statutes so that the list
of prohibited discrimination is consistent throughout the
Education Code, and with the cross referenced sections of
the Penal Code.
CHANGES TO EXISTING LAW
Existing law states that it is the policy of the state to
afford equal rights and opportunities to all persons in the
public or private schools and educational institutions of
the state regardless of their sex, ethnic group
identification, race, national origin, religion, or mental
or physical disability. [Education Code
200.]
Existing law prohibits a person from being subject to
discrimination on these specified bases and contains
various provisions to implement that policy. [Education
Code 220.]
Existing law prohibits a teacher from giving instruction,
and a school district from sponsoring any activity, that
reflects adversely upon persons because of their race, sex,
color, creed, handicap, national origin, or ancestry.
[Education Code 51500.]
Existing law prohibits the State Board of Education and the
governing board of a school district from adopting for use
in the public schools any instructional materials that
reflect adversely upon persons because of their race, sex,
color, creed, handicap, national origin, or ancestry.
[Education Code 51501.]
Existing law defines "hate crime" as a criminal act
committed, in whole or in part because of a person's actual
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or perceived disability, gender, nationality, race or
ethnicity, religion, sexual orientation, or association
with a person or group with one ore more of these
characteristics. [Penal Code 422.55.]
This bill would revise the current list of prohibited bases
of discrimination and the kinds of prohibited instruction,
activities, and instructional materials in the Education
Code, and instead would refer to the protected
characteristics contained in the definition of hate crimes
in the Penal Code.
This bill would also define disability, gender,
nationality, race or ethnicity, religion, and sexual
orientation for this purpose.
This bill would change the current references to
"handicapped" individuals in the Education Code to instead
refer to individuals with physical disabilities.
COMMENT
1. Stated need for the bill
The author states:
"Harassment based on discrimination is frequent in
schools in California. Data from California Healthy Kids
Survey (CHKS), the largest study of 7th-12th grade
students, shows that each year, 14.3% of all students
report harassment because of their race or ethnicity,
9.1% report harassment because of their religion, and
7.5% report harassment because they are gay or lesbian or
someone thought they were, and nearly 400,000 students
are harassed because of their race.
Discriminatory harassment is a serious problem because it
is linked to higher levels of academic, health and safety
risk. Students who reported discriminatory harassment
were twice as likely to be depressed, were more likely to
use and abuse alcohol and other substances, and reported
significantly lower grades than students who reported no
harassment.
Research has shown that inclusive school policies and
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curriculum make a difference: when students report that
their schools have non-discrimination and anti-harassment
policies that include sexual and gender identity, and
when they say that they have learned about LGBT [Lesbian,
Gay, Bisexual and Transgender] issues at school, they
report less harassment and they feel safer."
2.This bill would reference definitions of protected
characteristics already codified in the Penal Code
Education Code 200 sets forth the state's policy to
afford equal rights and opportunities to all persons in
the public or private schools and educational
institutions of the state regardless of their sex, ethnic
group identification, race, national origin, religion, or
mental or physical disability.
Education Code 220 contains a blanket prohibition of
discrimination which provides that students in all
publicly-funded educational institutions are protected
from discrimination based on actual or perceived sex,
ethnic group identification, race, national origin,
religion, color, mental or physical disability or
association with a person who has any of these
characteristics. The section also prohibits
discrimination based on actual or perceived
characteristics contained in the definition of hate
crimes listed in Section 422.55 of the Penal Code.
Section 422.55 of the Penal Code explicitly lists the
following as protected characteristics: disability,
gender, nationality, race or ethnicity, religion, sexual
orientation, or association with a person or group with
one or more of these characteristics.
This bill would create a consistency among statutes
prohibiting various forms of discrimination based on
specified personal characteristics by revising the list
of prohibited bases of discrimination in Education Code
200 & 220 consistent with the list in Section 422.55
of the Penal Code. This bill would also define the
protected characteristics according to the definitions
currently codified in the Penal Code.
The main effect of this revision is to expressly add
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"sexual orientation" to the list of protected classes in
Education Codes 200 & 220. However, this revision is
not an expansion of law as "sexual orientation" is
already listed in Penal Code 422.55, and is
incorporated by reference to 220.
In the past, the Legislature has enacted various measure
in an attempt to reach an across the board consistency
among anti-discrimination statutes. For example, in
2005, AB 1400 (Laird, Ch. 420, Statutes of 2005) was
introduced to clarify that marital status and sexual
orientation were protected characteristics under the
Unruh Civil Rights Act. AB 1400 imported definitions of
the protected characteristics from the Fair Employment
and Housing Act (FEHA) to accomplish this purpose. In
addition, SB 1441 (Kuehl, Ch. 182, Statutes of 2006) was
introduced to add "sexual orientation to the list of
characteristics protected from discrimination in any
program or activity that is conducted, operated, or
administered by the state or that receives any financial
assistance from the state. SB 1441 also incorporated
the definitions codified in the FEHA to accomplish this
purpose.
This bill would ensure that there is consistency between
Education Codes 220, and Penal Code 422.55, which it
currently specifically references. It would also revise
Education 200 to clarify that the equal rights and
opportunities in public education shall be afforded to
all protected classes. Public policy in preventing all
prohibited forms of discrimination is best served by
having uniformity among the statutes that specifically
prohibit it, and in providing clear notice to the public
of the protected classes. This will ensure that there
are no lapses in the type of protection provided and that
the public has proper notice of what the law requires and
prohibits.
3.This bill would conform all the prohibited categories of
discrimination in the Education Code
Education Code 200 et seq., is a comprehensive
statutory scheme that prohibits sex, ethnic group
identification, race, national origin, religion and
mental or physical disability discrimination in
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publicly-funded educational institutions. Pursuant to
this law, unlawful discrimination and harassment based on
these characteristics is prohibited in any academic,
athletic, extracurricular, research or financial aid
program or activity.
However, there are other nondiscrimination provisions in
the Education Code, which govern programs and activities
covered by Section 220, that vary in the type of
protection they explicitly prohibit. For example,
Section 235 prohibits "racial, sex, or ethnic
discrimination" in the operation of charter schools,
which clearly does not encompass all of the protected
characteristics listed in Section 220. In another
example, Sections 51500-51501 prohibit instruction and
the adoption of instructional materials which contain
matter reflecting adversely on persons because of their
"race, sex, color, creed, handicap, national origin, or
ancestry."
While the intent behind these statutes is the same - to
protect students from prohibited discrimination - the
inconsistencies in the explicit language among the
various sections of the Education Code can lead to a
lapse in protection for students, and create confusion
for teachers and school personnel who are responsible for
enforcing and complying with the law.
This bill would amend the various provisions of the
Education Code to reference the protected characteristics
listed in Section 220 to create uniformity in the
statutes.
4.This bill would remove all references to "handicap" and
replace them with "disability" throughout the Education
Code
Various provisions in the Education Code refer to
"handicapped pupils," "handicapped," "physically
handicapped pupils," "physically handicapped adults,"
"the handicapped," and "handicapped persons."
This bill would update these provisions and change these
terms to "pupils with disabilities," "adults with
disabilities," "pupils with physical disabilities,"
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"adults with physical disabilities," and persons with
disabilities." The revisions to these terms would be
consistent with modern usage of terminology in reference
to individuals who have disabilities.
5.Opposition
Opponents contend that this bill would ban any
instruction or activities in schools that reflect
adversely upon homosexuals, transgenders and bisexuals,
and therefore "any teaching promoting traditional
families would be discriminatory. Any activities such as
having a prom king and queen or gender-specific bathroom
would also be considered discriminatory." (Letter from
Capitol Resource Institute, dated April 9, 2007. )
Opponents further argue that this bill would "silence
students and teachers from the free expression of beliefs
and opinions that run contrary to total and complete
acceptance of all forms of sexual behavior." (Letter
from California Family Council, dated April 10, 2007.)
"Schools must be careful not to (through curriculum,
ancillary materials, activities or publications) foster
acceptance of behaviors involving sexuality and practices
that often contradict the moral and religious teaching
within families." (Letter from Concern Women for America
of California, dated April 11, 2007.)
It is important to note that because Education Code 220
currently prohibits discrimination on the basis of
characteristics specified in Penal Code 422.55,
discrimination against individuals on the basis of gender
and sexual orientation is already prohibited 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. Thus, this bill would not be
creating new categories of prohibited activity, but would
be ensuring that current law is enforced in all aspects
of the public education system.
6.This bill would incorporate definitions of protected
characteristics currently codified in the Penal Code
This bill would incorporate the definitions of protected
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characteristics contained in Penal Code 422.56. These
definitions are as follows:
(a) "Disability " includes mental and physical
disability
(b) "Gender" means sex, and includes a person's
gender identity
and gender related appearance and behavior whether or
not stereotypically associated with the person's
assigned sex at birth.
(c) "Nationality" includes citizenship, country of
origin, and
national origin.
(d) "Race or ethnicity" includes ancestry, color, and
ethnic
background.
(e) "Religion" includes all aspects of religious belief,
observance, and practice and includes agnosticism and
atheism.
(f) "Sexual orientation" means heterosexuality,
homosexuality, or
bisexuality.
Support: Asian Americans for Civil Rights & Equality;
Anti-Defamation League; Ally Action; Bienestar Human
Services; California Teachers Association;
Carruthers High School; Children of Lesbian and Gays
Everywhere; Gay and Gender Research; Gay, Lesbian
and Straight Education Network; Gay Straight
Alliance Network; Hillcrest Youth Center for the San
Diego LGBT Community Center; Inland County Stonewall
Democrats; Lamba Letters Project; National Center
for Lesbian Rights; Our Family Coalition; Planned
Parenthood; Project 10; Transgender Law Center; Gay
and Lesbian Adolescent Social Services, Inc.
Opposition: Concerned Women for America; California Family
Council; Capitol Resource Institute; Michael
McDermott (Men's Civil Rights Advocate)
HISTORY
Source: Equality California
Related Pending Legislation: None Known
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Prior Legislation: AB 537 (Kuehl et al., Ch. 587,
Statutes of 1999) added the characteristics
used in the definition of a hate crime to the
prohibited bases of discrimination found in
the Education Code.
AB 222 (Kuehl of 1999) would have added
sexual orientation into the prohibited bases
of discrimination throughout the Education
Code (This bill died on the Assembly Floor).
AB 499 (Kuehl, Ch. 914, Statutes of 1998)
reorganized, updated and clarified the
student civil rights protections found in the
Education Code.
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