BILL ANALYSIS
SB 777
Page 1
Date of Hearing: June 26, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 777 (Kuehl) - As Amended: May 10, 2007
SENATE VOTE : 23-13
SUBJECT : DISCRIMINATION: STUDENT CIVIL RIGHTS ACT
KEY ISSUE : SHOULD THE SPECIFIC NON-DISCRIMINATION PROVISIONS OF
THE EDUCATION CODE BE CLARIFIED TO ENSURE THAT THEY ARE
UNDERSTOOD TO BE CONSISTENT WITH EXISTING COMPREHENSIVE
NON-DISCRIMINATION OBLIGATIONS?
SYNOPSIS
This bill would revise the current list of prohibited bases of
discrimination enumerated in the Education Code, so that they
are consistent with 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,
consistently with their definition in the hate crimes law, and
replace uses of the outdated term "handicapped" with the
preferred term "disabled" and its variations. Supporters,
representing major civil rights groups, education advocates,
community organizations and others, contend that standardizing
protected characteristics among the anti-discrimination statutes
is important in order to rectify deficiencies and resolve
confusion with respect to education equity. Opponents however
argue, in summary, that the bill "would ban any moral viewpoint
contrary to the radical gay agenda and demand that deviant
sexual behavior be portrayed as normal."
SUMMARY : Creates consistency in educational policy with respect
to non-discrimination on the basis of specified characteristics.
Specifically, this bill :
1)Revises the current list of prohibited bases of discrimination
and the kinds of prohibited instruction, activities, and
instructional materials in the Education Code so as to make
the types of prohibited discrimination explicitly consistent
with the protected characteristics contained in the definition
of hate crimes in the Penal Code.
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2)Defines disability, gender, nationality, race or ethnicity,
religion, and sexual orientation for this purpose,
consistently with the hate crimes statute.
3)Replaces current uses of the term "handicapped" (and
variations on that term) in the Education Code with the
preferred term "disabled" and its variants.
4)Restates the existing obligation regarding non-discrimination
in teacher instruction, instructional materials and
district-sponsored activities by deleting the prohibition
against "reflecting adversely upon" a specified characteristic
and replacing it with a more comprehensible standard "promotes
a discriminatory bias" based on the specified characteristics.
EXISTING LAW :
1) Declares that it is the policy of the state to afford
equal rights and opportunities to all persons in public and
educational institutions of the state, as well as private
schools that receive or benefit from state financial
assistance, regardless of their sex, ethnic group
identification, race, national origin, religion, or mental
or physical disability. (Education Code sections 200, 220,
51004, 66030, 66251, 66270. All further statutory
references are to the Education Code unless otherwise
noted.)
2) Prohibits a person from being subject to discrimination
on these specified bases and contains various provisions to
implement that policy. (E.g., sections 220, 235, 35316,
35351, 44253.2, 47605.)
3) 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. (Section
51500.)
4) 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. (Sections
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51501, 60044.)
5) Defines "hate crime" as a criminal act committed, in
whole or in part because of a person's actual 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 section 422.55.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : In support of 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
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.
Consistency in Education Non-Discrimination Policy . Education
Code section 200 broadly sets forth the state's policy to afford
equal rights and opportunities to all persons in public or
private schools and educational institutions of the state
regardless of their sex, ethnic group identification, race,
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national origin, religion, or mental or physical disability.
Correspondingly, section 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. These sections also prohibit
discrimination based on actual or perceived characteristics
contained in the hate crimes statute, section 422.55 of the
Penal Code - disability, gender, nationality, race or ethnicity,
religion, sexual orientation, or association with a person or
group with one or more of these characteristics.
In addition to these global non-discrimination provisions, other
sections of the Education Code likewise prohibit discrimination
in specific circumstances of educational institutions, but have
not been consistently updated to reflect evolving state equal
opportunity policy. For example, some of these code sections
fail to include sex or disability. Although those specific
directives are subsumed by and subordinate to the general
prohibitions, the exclusion of some protected characteristics
from the specific sections can create confusion and uncertainty
when, as one would expect, members of the education community
consult specific provisions of the Education Code to understand
their non-discrimination obligations. This bill would provide
better guidance by creating consistency among the statutes
prohibiting various forms of discrimination by revising the list
of prohibited bases of discrimination in Education Code section
200 and 220 (K-12) and sections 66251, 66270 (higher education)
so that it corresponds with the list in the hate crimes statute.
This bill would also define the protected characteristics
consistently with the definitions currently codified in the hate
crimes law.
As opponents note, the main effect of this revision is to
expressly add "sexual orientation" to the list of protected
classes. However, the explicit inclusion of sexual orientation
is not truly a substantive change because sections 200 and 220
already cross-reference the list of prohibited characteristics
in the hate crimes statute, which includes sexual orientation.
In other words, the bill simply adds expressly what is already
incorporated by reference. The bill notably does not in any way
eliminate or reduce the existing exemption from
non-discrimination obligations by religious schools when
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compliance with the obligation would be inconsistent with the
religious tenets of the school. (See, e.g., Op. of Attny Gen.
99-1001 (May 1, 2000).)
Achieving consistency in the anti-discrimination provisions of
the Education Code is comparable to other measures that have
been signed into law to achieve consistency with regard to
discrimination policy in employment and housing. (See, for
example, AB 2900 (Laird 2004) which amended 35 specific labor
and employment-related nondiscrimination provisions and AB 2800
(Laird 2006), which similarly amended 17 specific housing
related nondiscrimination provisions.) In addition, the
Legislature has explicitly added sexual orientation to various
non-discrimination statutes, including statutes where it was
already implied. (AB 1400 (Laird 2005) (Unruh Civil Rights
Act), SB 1441 (Kuehl 2006) (discrimination in state-funded
programs).)
Replacing references to "handicap" with the term "disability."
Various provisions of the Education Code still use the outmoded
terms "handicapped pupils," "handicapped," "physically
handicapped pupils," "physically handicapped adults," "the
handicapped," and "handicapped persons." This bill would update
these provisions by changing these terms to "pupils with
disabilities," "adults with disabilities," "pupils with physical
disabilities," "adults with physical disabilities," and "persons
with disabilities." These changes simply reflect modern
person-first usage.
Rectifying Ambiguity In Non-Discrimination Obligation Regarding
Instruction And Materials. Existing law provides that no
teacher shall give instruction, no textbook or instructional
materials shall be adopted, nor shall a school district sponsor
any activity that "reflects adversely upon persons" because of a
characteristic listed in Section 220. Although the principle of
non-discrimination is well accepted, the phrasing of this
obligation has been criticized as unworkably vague and
unnecessarily confusing. Indeed, research reveals that no other
statutory non-discrimination provision in California law uses
this term. This bill therefore replaces the awkward phrase
"reflecting adversely upon" with the more comprehensible and
straightforward statement that instruction and materials should
not "promote a discriminatory bias" because of the protected
characteristics. Although not intended to diminish the existing
non-discrimination duty, this wording is believed to better
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capture the goals and principles of the Education Code.
Author's Technical Amendments . The author appropriately
proposes to correct drafting errors with the following
amendments:
Revise the definition of "disability" in sections 210.1 and
66260.5 so that it references the accepted FEHA definition and
is consistent with the Penal Code definition, by adding the
phrase "as defined in Section 12926 of the Government Code."
Restore the existing prohibition against age discrimination in
sections 260, 66030, 66292, 66292.1, 66292.2, 69535, and
occupation in section 60044, and restore the term "ethnic group
identification" in, e.g., section 200 and 220, by adding it to
the definition of "race or ethnicity" in section 212.1 and
66261.7.
Revise sections 51500, 51501 and 60044 so that they prohibit
materials and activities that reflects or promotes promote a
discriminatory bias against any person because of a
characteristic listed in Section 220.
ARGUMENTS IN OPPOSITION : The Traditional Values Coalition
writes in opposition to the bill, summarizing its arguments as
follows:
Effectively, this bill would ban any moral viewpoint
contrary to the radical gay agenda and demand that deviant
sexual behavior be portrayed as normal.
This means that all textbooks would have to positively
portray the homosexual, bisexual or transgender lifestyles.
To positively portray means equal or even portrayal in all
occupations, achievements, parenting activities,
traditional and non-traditional activities, all roles and
in ALL portrayals since the bill would amend Education Code
section 60044 to include sexual orientation and gender in
the curriculum standards regarding male and female roles.
SB 777 is clear, no teacher instruction, no textbook, no
school activity, nor an instructional materials could
"reflect" or "promote" a "discriminatory bias against any
person..." who is homosexual, bisexual or transgender.
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SB 777 cleverly accomplishes two major goals of radical
homosexual activists: It gives pro-homosexual teachers free
reign to teach whatever they want about the alleged
positive aspects of homosexuality - and it silences all
opposition to it. Teachers would be free to promote
homosexuality but banned from discussing any negative
consequences or allowing opposition to these lifestyles for
fear of fostering or promoting discrimination.
SB 777 is a dangerous bill for several reasons: 1) It
forces all subjects to focus on an aspect of sexual life
without proper context; 2) It will indoctrinate young
children into an inaccurate perspective on homosexuality
during some of the most formative years of their lives; 3)
It may allow for the banning of Bibles, Torahs, and other
religious texts that speak out against homosexuality; and
4) It discriminates against religious viewpoints, and
comprises a direct attack upon religious liberty and
tolerance, which are the bedrock of American society.
The Capitol Resource Institute also opposes the bill, stating:
"Similar to last session's highly controversial SB 1437, this
legislation would ban any textbooks, teaching or activities in
schools that "reflect or promote bias" against homosexuals,
transgenders, bisexuals, and those with gender (perceived or
actual) issues. This legislation would ban private schools from
any teaching or activities deemed "adverse" to homosexual or
other alternative lifestyles. This means that any teaching
promoting traditional families would be discriminatory. Any
activities such as having a prom king and queen or
gender-specific bathrooms would also be considered
discriminatory." CRI goes on to argue, "Also similar to last
session's SB 1441, this bill specifically discriminates against
religious and moral institutions by preventing any public funds,
including Cal Grants, from going to "discriminatory" Christian
colleges and universities. Because public funding can find its
way into almost any school through disabled student aid, lunch
programs and a wide variety of other state programs. SB 777
goes much further than any other past attack on the moral and
religious beliefs of Californians. This bill specifically
targets people of faith and then discriminates against their
sincerely held beliefs by banning their freedoms of speech and
association."
Similarly, the California Family Council contends:
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SB 777 places the authority of Section 422.55 of the state
Penal Code (the definition of hate crimes) into all of
California's Education Code. If successful, two dozen
sections of the Education Code would be amended to prohibit
any instruction, school activities, or instructional
materials that may "reflect adversely upon persons because
of their disability, gender, nationality, race or
ethnicity, religion, and sexual orientation." Based on
already established "hate crime" terminology, and building
on a subjective interpretation for "adverse reflection upon
persons," SB 777 would re-engineer the curricula and
culture of publicly funded schools.
Under the guise of "bias-free education," SB 777 would, in
truth, 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. In fact, this bill threatens an accurate
portrayal of history and social science, which would be
silenced by the possibility of reflecting adversely on an
individual or group.
S8 777 is not bias-free, as its proponents claim. It is
intolerant of opposing beliefs and perspectives.
The bill also adds "agnosticism and atheism" to the list of
acceptable religions. This new definition includes
religious beliefs, observances, and practices. In reality,
agnosticism and atheism are patently non-religious belief
systems and should not be classified as "religions." The
basic premise of both categories actually deny or question
the existence of religion and, therefore, any inclusion of
these two terms as religion is diametrically opposed to the
accuracy of the current and historical definition of
religion.
The Campaign for Children and Families states that it opposes SB
777 "because schools should promote academics, not a sexual
agenda that shocks and disturbs parents. SB 777 mandates that
California school textbooks be altered to positively portray
transsexuality, bisexuality and homosexuality to children as
young as kindergarten, without parental permission. The bill
requires that this sexual agenda be reflected in textbooks,
instructional materials, and school-sponsored activities. These
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mandates would be enforced by the attorneys at the California
Department of Education and would harm schools that are
dedicated to academic excellence and parental involvement."
"When California public schools are already suffering from low
test scores and a high drop out rate in certain populations, it
is neither helpful nor appropriate to pass legislation that
promotes a divisive sexual agenda on school campuses and among
parents in the community. How is a school district to prove
that it is not discriminating or reflecting adversely upon
homosexuality, bisexuality and transsexuality? Only by
positively portraying these lifestyles in textbooks,
instructional materials, and school-sponsored activities.
Because silence on lesbian, gay, bisexual and transgender (LGBT)
issues will not be allowed."
"Even if one supports the LGBT agenda, SB 777 cannot be
supported if you believe in academic excellence. Just as a
child cannot eat dessert until he's finished his vegetables, no
new activity - and certainly not a divisive one as this - should
be required of schools before minimum academic standards are
achieved. To restore confidence in the education system, we
must keep our eye on the ball. SB 777 will cause legal
persecution of schools that believe in academic excellence and
parental rights. For these reasons, this bill should be
opposed."
REGISTERED SUPPORT / OPPOSITION :
Support
AFSCME
AIDS Project Los Angeles
Ally Action
Anti-Defamation League
Asian Americans for Civil Rights
Asian Law Caucus
Bienestar Human Services
California Commission on Status of Women
California National Organization for Women (CA NOW)
California Parent Teacher Association
California Teachers Association
Caruthers High School
Children of Lesbian and Gays Everywhere (COLAGE)
Equality California (sponsor)
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Gay and Gender Research
Gay and Lesbian Adolescent Social Services (GLASS)
Gay, Lesbian and Straight Education Network (GLSEN)
GLSEN Orange County
Gay Straight Alliance Network
Hillcrest Youth Center of the San Diego LGBT Community Center
Inland County Stonewall Democrats
Lambda Letters Project
Light House Community Center
Los Angeles Gay and Lesbian Center
Mexican American Legal Defense and Education Fund
National Center for Lesbian Rights (NCLR)
Our Family Coalition
Planned Parenthood
Project 10
Rockway Institute at Alliant International University, Los
Angeles
Transgender Law Center
A few individuals
Opposition
California Family Council
California Catholic Conference
Campaign for Children and Families
Capitol Resource Institute
Concerned Women for America
Traditional Values Coalition
Approximately 10 individuals
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334