Existing law, the Equity in Higher Education Act, states the policy of the State of California to afford all persons, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in postsecondary educational institutions of the state, and states that the purpose of related existing law is to prohibit acts that are contrary to that policy and to provide remedies therefor. Existing law prohibits a person from being subjected to discrimination on those bases and states that each characteristic includes a perception that the person has that characteristic or that the person is associated with a person who has, or is perceived to have, that characteristic.

This bill would expressly reference immigration status in the specified characteristics for purposes of those provisions. The bill would state that the Legislature finds and declares these changes to be declaratory of existing law. The bill would also specify that nothing in the Equity in Higher Education Act shall be construed to require a postsecondary educational institution to offer admission or student financial aid to a nonimmigrant alien, as specified, except as provided.

Existing law law, the Equity in Higher Education Act, states the policy of the State of California to afford all persons, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in postsecondary educational institutions of the state, and states that the purpose of related existing law is to prohibit acts that are contrary to that policy and to provide remedies therefor. Existing law prohibits a person from being subjected to discrimination on those bases and states that each characteristic includes a perception that the person has that characteristic or that the person is associated with a person who has, or is perceived to have, that characteristic.

This bill would expressly reference immigration status in the specified characteristics for purposes of those provisions. The bill would state that the Legislature finds and declares these changes to be declaratory of existing law. The bill would also specify that nothing in the Equity in Higher Education Act shall be construed to require a postsecondary educational institution to offer admission or student financial aid to a nonimmigrant alien, as specified, except as provided.

Existing law states the policy of the State of California to afford all persons, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in postsecondary educational institutions of the state, and states that the purpose of related existing law is to prohibit acts that are contrary to that policy and to provide remedies therefor. Existing law prohibits a person from being subjected to discrimination on those bases and states that each characteristic includes a perception that the person has that characteristic or that the person is associated with a person who has, or is perceived to have, that characteristic.

This bill would expressly reference immigration status in the specified characteristics for purposes of those provisions.

(1)Existing law permits the voters of a city to nominate a candidate for an elective office of the city by the signing and filing of nomination papers, as specified. Existing law requires a candidate for an elective office in a local agency to include an affidavit with his or her nomination papers, indicating the candidates name, designation, and residence address, as specified.

This bill would additionally require that the candidate disclose his or her party preference, or indicate that he or she declines to disclose a party preference, on the affidavit of the nominee. The bill also would make conforming changes.

(2)Existing law authorizes each candidate for nonpartisan elective office in any local agency, including any city, county, city and county, or district, to prepare a candidates statement on an appropriate form provided by the elections official. Existing law prohibits the statement from including the candidates party affiliation or membership or activity in partisan political organizations.

This bill would instead authorize a candidate to include his or her party preference or membership or activity in partisan political organizations in his or her candidates statement.

(3)Existing law prohibits a ballot for an elective office in any local agency election from including a candidates party preference.

This bill would require a ballot for an elective office in a local agency, including any city, county, city and county, or district, to include a candidates party preference, as specified. Because this bill would impose additional duties on local elections officials, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

This bill would provide that it would become operative only if SCA ____ is approved by the voters.

 UNFINISHED BUSINESS  

Bill No: SB 691

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 1/9/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SENATE FLOOR: 30-9, 1/29/18

AYES: Allen, Atkins, Beall, Bradford, Cannella, De León, Dodd, Galgiani, Glazer, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Newman, Nguyen, Pan, Portantino, Roth, Skinner, Stern, Vidak, Wieckowski, Wiener, Wilk

NOES: Anderson, Bates, Berryhill, Fuller, Gaines, Moorlach, Morrell, Nielsen, Stone

NO VOTE RECORDED: Mendoza

ASSEMBLY FLOOR: 58-19, 8/20/18 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST:

This bill provides that it is the policy of the State of California to afford all persons, regardless of immigration status, equal rights and opportunities in the postsecondary educational institutions of the state.

Assembly Amendments (1) clarify that the bill shall not be construed to require a postsecondary institution to offer admission or student financial aid to non-immigrants, except for those holding visas based on being a victim of crime or trafficking; and (2) indicate that the bill is declaratory of existing law.

ANALYSIS:

Existing law:

1. Establishes the Equity in Higher Education Act (Act), which provides that it is the policy of the State of California to afford all persons, regardless of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation equal rights and opportunities in the postsecondary educational institutions of the state, as specified. (Ed. Code Sec. 66251 et seq.)
2. Prohibits a person from being subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (including sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes, 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. (Ed. Code Sec. 66270.)
3. Provides specified guidance and requirements related to a discrimination complaint against a post-secondary educational institution, including the following:
4. persons who have filed a complaint shall be advised by the educational institution that they may have civil law remedies, as specified;
5. that nothing in the Act shall require an exhaustion of remedies provided by the institution before a civil law remedy may be purchased; and
6. a moratorium requiring that a student file a discrimination complaint with the educational institution 90 days prior to seeking any civil remedy, as specified. (Ed. Code Sec. 66292.3.)

This bill:

1. Provides that the policy of the State of California to afford all persons equal rights and opportunities in postsecondary education institutions, regardless of disability, gender, race or ethnicity, and other specified characteristics, also extends to immigration status under existing law.
2. Provides that discrimination on the basis of immigration status (in addition to characteristics, such as disability, gender, race, and religion) in any program or activity conducted by any postsecondary education institution that receives, or benefits from, state financial assistance, or enrolls students who receive state student financial aid, is also prohibited under existing law.
3. Provides that "disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Penal Code Section 422.55, including immigration status," includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
4. Provides that nothing in this act shall be construed to require a postsecondary institution to offer admission or student financial aid to a nonimmigrant alien within the meaning of Title 8 United States Code (U.S.C.) Section 1101(a)(15), as that paragraph exists on January 1, 2019. Further provides, however that students granted status pursuant to subparagraphs (T) or (U) of paragraph (15), as specified, shall not be subjected to discrimination in admission or financial aid on the basis of immigration status.
5. Finds and declares that the amendments to the Education Code made by this bill (as described in 1) to 3), above) do not constitute a change in, but are declaratory of, existing law.

Background

California provides a host of nondiscrimination statutes that generally seek to ensure equal opportunities in state educational programs by prohibiting discrimination against protected classes of individuals. (See e.g. Ed. Code Sec. 200 et seq., entitled Educational Equity; see also 5 C.C.R. Sec. 4900 et seq. for regulations that seek to ensure compliance with federal and state nondiscrimination laws.) With respect to higher education institutions, California’s Equity in Higher Education Act prohibits a person from being subject to discrimination on the basis of certain characteristics 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. (Ed. Code Sec. 66270 et seq.) These protected bases include disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (such as sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes. (Ed. Code Sec. 66270.)

With regard to K-12 educational institutions, the U.S. Supreme Court has long held that all children, regardless of immigration status, have a right to attend public school. The Court first laid down this principle in its landmark decision, Plyer v. Doe (1982) 457 U.S. 202. Subsequently, California voters attempted to restrict the ability of undocumented students to attend California public schools when they passed Proposition 187 in 1994. Applying, among other things, the holding in Plyer v. Doe, the federal courts first enjoined and then ultimately approved a settlement striking down this aspect of Proposition 187. (League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 20, 1995) 908 F. Supp. 755.; League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 14, 1997) 997 F. Supp. 1244.)

Last year the Senate passed, and the Governor signed into law, AB 699 (O’Donnell, Chapter 493, Statutes of 2017) which, among other things, codified Plyer by amending various Education Code provisions to prohibit discrimination based on immigration status in K-12 public schools. By adding “immigration status” to the list of protected characteristics in the Equity in Higher Education Act, this bill seeks to prohibit discrimination based on immigration status in California’s public post-secondary institutions as well.

FISCAL EFFECT: Appropriation: Fiscal Com.: Yes Local:

According to the Assembly Appropriations Committee, the bill would have no cost.

SUPPORT: (Verified 8/20/18)

American Academy of Pediatrics – California

California Asian Pacific Chamber of Commerce

California Health Advocates

California Immigrant Policy Center

California State PTA

California State Student Association

Disability Rights California

Los Angeles County Office of Education

San Jose Evergreen Community College District

University of California Student Association

OPPOSITION: (Verified 8/20/18)

None received

ARGUMENTS IN SUPPORT: The author writes:

California has worked to ensure that undocumented students are able to attain post-secondary education in the same way every other Californian is able to do so. While not exclusively for undocumented students, AB 540 (Firebaugh, Ch. 814, Stats. 2001) exempts California nonresidents from paying nonresident tuition at our public higher education institutions if they meet certain criteria. Including immigration status as a covered basis under the Equity in Higher Education Act will make very clear California’s continued commitment to all people looking to further their education. With the successful passage of AB 699 (O’Donnell, Ch. 493, Stats. 2017), the Legislature has demonstrated that it is already willing to support this same language in the Educational Equity Chapter (Ed. Code Sec. 200) for students in K-12 public schools. By including this language for postsecondary educational institutions, California will ensure that this principle and policy is carried throughout a student’s entire educational career in our public school systems.

ASSEMBLY FLOOR: 58-19, 8/20/18

AYES: Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Cunningham, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Lackey, Levine, Limón, Low, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Quirk-Silva, Reyes, Rivas, Rodriguez, Rubio, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon

NOES: Travis Allen, Bigelow, Brough, Chen, Choi, Dahle, Fong, Gallagher, Harper, Kiley, Maienschein, Mathis, Mayes, Melendez, Obernolte, Patterson, Steinorth, Voepel, Waldron

NO VOTE RECORDED: Acosta, Chávez, Flora

Prepared by: Timothy Griffiths / JUD. / (916) 651-4113

8/21/18 13:33:03

**** END ****

SENATE THIRD READING

STR Bill Id:

Author:(Lara)

As Amended Ver:

Majority vote

SENATE VOTE: 30-9

SUMMARY: Clarifies that, under the Equity in Higher Education Act, all persons in post-secondary educational institutions are entitled to equal rights and freedom from discrimination on the basis of their immigration status. Specifically, this bill:

1. Provides that the policy of the State of California to afford all persons equal rights and opportunities in postsecondary education institutions, regardless of disability, gender, race or ethnicity, and other specified characteristics, also extends to immigration status under existing law.
2. Provides that discrimination on the basis of immigration status (in addition to characteristics, such as disability, gender, race, and religion) in any program or activity conducted by any postsecondary education institution that receives, or benefits from, state financial assistance, or enrolls students who receive state student financial aid, is also prohibited under existing law.
3. Provides that "disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Penal Code Section 422.55, including immigration status," includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
4. Provides that nothing in this act shall be construed to require a postsecondary institution to offer admission or student financial aid to a nonimmigrant alien within the meaning of Title 8 United States Code (U.S.C.) Section 1101(a)(15), as that paragraph exists on January 1, 2019. Further provides, however that students granted status pursuant to subparagraphs (T) or (U) of paragraph (15), as specified, shall not be subjected to discrimination in admission or financial aid on the basis of immigration status.
5. Finds and declares that the amendments to the Education Code made by this bill (as described in 1) to 3), above) do not constitute a change in, but are declaratory of, existing law.

FISCAL EFFECT: According to the Assembly Appropriations Committee, no cost.

COMMENTS: This bill seeks to clarify that, under the Equity in Higher Education Act, all persons in post-secondary educational institutions are entitled to equal rights and freedom from discrimination on the basis of their immigration status.

According to the author: "The Equity in Higher Education Act does not explicitly list immigration status as a covered basis for equal rights and opportunities offered to all people in postsecondary educational institutions in California. Discrimination on the basis of immigration status in public schools is already prohibited by California law. This bill's inclusion of 'immigration status' among the protected classes from discrimination in California public schools would just make that explicitly clear."

K-12 schools. With regard to K-12 education, all children have a right to attend public school, regardless of immigration status, under the United States (U.S.) Supreme Court's landmark decision in Plyler v. Doe (1982) 457 U.S. 202. Subsequently, California voters attempted to restrict the ability of undocumented students to attend California public schools when they passed Proposition 187 in 1994. However, this part of Proposition 187 was ultimately found to be unenforceable by the federal courts (League of United Latin Am. Citizens v. Wilson (C.D. Cal. 1997) 997 F. Supp. 1244) because, as a state law, it was pre-empted by the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA), a comprehensive statutory scheme enacted by Congress to determine aliens' eligibility for federal, state, and local benefits and services. Because the PRA preempts state law and expressly defers to the Plyler v. Doe ruling, the right of all children to receive a K-12 education in our public schools remains the law.

Last year, the Legislature passed and the Governor signed AB 699 (O'Donnell), Chapter 493, Statutes of 2017, which codifies Plyler in the Education Code by expressly prohibiting discrimination based on immigration status in K-12 education. AB 699 also acts to ensure educational opportunity for immigrant students in a different way—specifically, by establishing various policies to be implemented by public schools in California that safeguard against immigration enforcement activities on K-12 school campuses.

Post-secondary educational institutions. Last year, the Legislature also approved and the Governor signed AB 21 (Kalra), Chapter 488, Statutes of 2017, which urges higher education institutions in California to implement various prescribed policies and protections in order to safeguard against immigration enforcement on these campuses.

In the realm of higher education, where ability to pay tuition is a potential barrier that does not exist at the K-12 level, the Legislature has in the past enacted laws intended to ensure that undocumented students, who are ineligible for federal financial aid, nonetheless have access to an affordable state education. For example, in 2001 the Legislature passed AB 540 (Firebaugh), Chapter 814, Statutes of 2001, to ensure that students who had graduated from and attended a California high school for at least three years, were exempted from paying out-of-state tuition at California community colleges and state universities, regardless of immigration status. In addition, the Legislature passed and the Governor signed SB 1139 (Lara), Chapter 786, Statutes of 2016, which makes any student who meets the requirements for admission eligible to participate in a medical school program and medical residency training program, regardless of immigration status. SB 1139 also prohibits grant and loan forgiveness programs from denying an application based on applicants' citizenship or immigration status.

Consistent with the legislation and policies described above, this bill seeks to further the purpose of AB 699 in the Equity in Higher Education Act and make clear that discrimination on the basis of immigration status is prohibited in post-secondary educational institutions in California.

Clarification that discrimination based on immigration status is already unlawful. Existing law, Education Code Section 66251, declares that it is the policy of the State of California to afford all persons in public schools equal rights and opportunities in the educational institutions of the state, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Penal Code Section 422.6(a). Similarly, Section 66270 prohibits discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Government Code Section 11135 or any other characteristic that is contained in the prohibition of hate crimes set forth in Penal Code Section 422.6(a).

In order to clarify that discrimination based on immigration status is already unlawful in post-secondary institutions and that this bill is simply making this fact more transparent, recent amendments to the bill state that the amendments made to Education Code Sections 66251, 66260.6, and 66270 by this bill are declaratory of existing law. This also helps harmonize the interpretation of this bill with AB 699—the bill establishing current law which it seeks to adopt and extend to the higher education arena.

Offers of admission or financial aid to nonimmigrant students. As stated by the author, this bill seeks to guarantee all persons equal rights and opportunities, and freedom from discrimination, in the postsecondary educational institutions of the state, regardless of immigration status. However, as mentioned above, a student's immigration status may make that student ineligible, under federal rules, for federal financial aid or admission to a federal program or fellowship that provides financial support, depending on the circumstance (for example, whether the student is an undocumented immigrant to the U.S., or a nonimmigrant foreign national temporarily in the country on a student visa). This raises the question whether a college or university can truly provide "equal rights and opportunities" under this statute to certain categories of students in cases where federal law prohibits it based on immigration status. Furthermore, because existing law allows these nondiscrimination provisions to be enforced through a civil action (Education Code Section 66292.4), post-secondary institutions may be rightfully concerned that they could be forced to defend a lawsuit for breach of this bill, should it become law, for actions taken simply to comply with federal law.

In order to address this concern, recent amendments to the bill clarify that nothing in the Act shall be construed to require a postsecondary institution to offer admission or student financial aid to certain nonimmigrant foreign students, as defined by reference to specified provisions of the federal Immigration and Nationality Act (INA) (8 U.S.C. Section 1101).

Paragraph (15) of subdivision (a) of Section 1101 of Title 8 of the United States Code specifies almost two dozen classes of "nonimmigrant aliens" which are excluded from the INA's definition of the term "immigrant." According to the author, this bill mirrors other provisions of the Education Code that also refer to paragraph (15) of subdivision (a) of 8 U.S.C. Section1101 in order to draw a distinction between immigrant and nonimmigrant students for purposes of eligibility for certain benefits. For example, AB 540 (2001) exempts certain nonresident students, including persons without lawful immigration status, from paying more costly nonresident tuition at California State Universities and community colleges—with the exception of "nonimmigrant aliens within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code." (Education Code 68130.5(a).)

According to the author, the legislative history of AB 540 shows that this language was used to make clear that nonimmigrant foreign nationals, including ambassadors, foreign ministers, diplomats, and others listed in paragraph (15) would not be exempt from paying nonresident tuition because that was not the subgroup of people judged to be in need of the benefit conferred by the bill. Several committee analyses of the bill indicate that this exemption language was amended into AB 540 after the Chief Legislative Counsel issued an opinion that an exemption from nonresident tuition (as previously proposed under AB 1197 of 2000, the predecessor to AB 540) would not violate relevant federal law if it did not tamper with a student's residency status under federal law and excluded from out-of-state tuition exemptions foreign residents as specified in Title 8 U.S.C. Section 1101(a)(15).

Among other things, SB 1139 (Lara), Chapter 786, Statutes of 2016, provides that any student who meets the requirements for admission is eligible to participate in a medical school program and medical residency training program, regardless of immigration status, including undocumented students and those who are exempt from nonresident tuition under AB 540. SB 1139, by the same author as this bill, recognized that some classes of "nonimmigrant aliens"—specifically, those who qualify as victims of human trafficking or victims of crime or abuse under subparagraphs (T) and (U), respectively—do in fact qualify for federal financial aid benefits, and therefore were exempted from the nonimmigrant exemption. Accordingly, this bill follows the same approach as SB 1139 and likewise excludes victims of human trafficking or victims of crime or abuse under subparagraphs (T) and (U) from the class of nonimmigrant aliens to whom the bill's protections are not intended to apply. Specifically, the bill clarifies that students granted status pursuant to subparagraphs (T) or (U) of paragraph (15), as specified, shall not be subjected to discrimination in admission or financial aid on the basis of immigration status.

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334 FN: 0003836

Date of Hearing: August 8, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 691

Author:(Lara) – As Amended Ver:August 6, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill clarifies in state law that discrimination on the basis of immigration status is prohibited in post-secondary educational institutions. Specifically, it adds immigration status as a protected characteristic under the Equity in Higher Education Act.

FISCAL EFFECT:

No cost.

COMMENTS:

1. Existing Law. The Equity in Higher Education Act states it is the policy of the state to afford all persons, regardless of their disability, gender, gender identity, gender expression, nationality, race, ethnicity, religion, sexual orientation, or any other specified characteristic, equal rights and opportunities in post-secondary educational institutions in California.

This bill adds immigration status explicitly to the list of characteristics in the act.

1. Purpose. According to the author:

By adding immigration status to the list of protected characteristics in the Equity in Higher Education Act, this bill seeks to prohibit discrimination based on immigration status in California’s public post-secondary institutions.

1. Staff Comments. Adding immigration status to the list of groups against which post-secondary education institutions may not discriminate is unlikely to result in additional costs to the state. Public institutions already provide admission and other services to undocumented students.
2. Prior Legislation. AB 699 (O’Donnell) Chapter 493, Statutes of 2017, clarified in state law that discrimination on the basis of immigration status is prohibited in secondary educational institutions.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: June 26, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 691

Author:(Lara) – As Amended Ver:January 12, 2018

As Proposed to be Amended

SENATE VOTE: 30-9

SUBJECT: EDUCATIONAL EQUITY: IMMIGRATION STATUS

KEY ISSUE: should it be clarified that it is the policy of california that all persons are to be afforded equaL RIGHTS AND OPPORTUNITIES IN HIGHER EDUCATION, AS WELL AS FREEDOM FROM DISCRIMINAtion, on the basis of immigration status?

SYNOPSIS

Last year, the Legislature passed and the Governor signed AB 699 (O’Donnell), Chap. 493, Stats. 2017, which amended the Education Code to expressly prohibit discrimination based on immigration status in K-12 education, and require that equal rights and opportunities be afforded to all K-12 students regardless of immigration status. Amendments to AB 699 taken in this Committee clarified that such discrimination was already prohibited by existing law, but that specifying immigration status in the statute was a helpful clarification because that conclusion was not necessarily easy to ascertain for the lay person without reference to multiple code sections.

Currently, the Equity in Higher Education Act (Act) does not explicitly list immigration status as a covered basis for equal rights and opportunities offered to all people in postsecondary educational institutions in California. This bill would include “immigration status” as a covered basis for educational equity in higher education, following the language enacted last year by AB 699 for K-12 schools. Proposed amendments to the bill fully mirror AB 699 by also incorporating language finding that these changes are declaratory of existing law, thus creating parity and consistency between K-12 and higher education policy on nondiscrimination. Additional proposed amendments to the bill clarify that nothing in the Act shall be construed to require a postsecondary institution to offer admission or student financial aid to certain non-immigrant foreign students, as defined by reference to specified provisions of the federal Immigration and Nationality Act (8 U.S.C. Section 1101). This amendment simply clarifies that complying with this bill's call to ensure "equal rights and opportunities" to all students does not necessarily require California postsecondary institutions to grant admission or student financial aid to certain categories of nonimmigrant students where federal law prohibits such benefits for those groups on the basis of immigration status. The bill is supported by the UC and CSU Student Associations, immigrant advocate groups and others and has no known opposition.

SUMMARY: Clarifies that, under the Equity in Higher Education Act, all persons in post-secondary educational institutions are entitled to equal rights and freedom from discrimination on the basis of their immigration status. Specifically, this bill:

1. Provides that the policy of the State of California to afford all persons equal rights and opportunities in postsecondary education institutions, regardless of disability, gender, race or ethnicity, and other specified characteristics, also extends to immigration status under existing law.
2. Provides that discrimination on the basis of immigration status (in addition to characteristics, such as disability, gender, race, and religion) in any program or activity conducted by any postsecondary education institution that receives, or benefits from, state financial assistance, or enrolls students who receive state student financial aid, is also prohibited under existing law.
3. Provides that “disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status,” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
4. Provides that nothing in this act shall be construed to require a postsecondary institution to offer admission or student financial aid to a nonimmigrant alien within the meaning of paragraph (15) of subdivision (a) of Section 1101 of Title 8 of the United States Code, as that paragraph exists on January 1, 2019, except for students granted status pursuant to subparagraphs (T) or (U) of paragraph (15), as specified.
5. Finds and declares that the amendments to the Education Code made by this bill (as described in 1 to 3, above) do not constitute a change in, but are declaratory of, existing law.

EXISTING LAW:

1. Establishes the Donohoe Higher Education Act, stating that the public elementary and secondary schools, the California Community Colleges, the California State University, the University of California, and independent institutions of higher education share goals designed to provide educational opportunity and success to the broadest possible range of our citizens, and shall provide the following:
   1. Access to education and the opportunity for educational success for all qualified Californians.
   2. Quality teaching and programs of excellence for their students.
   3. Educational equity not only through a diverse and representative student body and faculty but also through educational environments in which each person, regardless of race, gender, gender identity, gender expression, sexual orientation, age, disability, or economic circumstances, has a reasonable chance to fully develop his or her potential. (Education Code Section 66010 et seq. All further references are to the Education Code unless otherwise stated.)
2. Within the Donahoe Act, establishes the Equity in Higher Education Act (EHEA), which provides that it is the policy of the State of California to afford all persons, regardless of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, or sexual orientation, equal rights and opportunities in the postsecondary educational institutions of the state, as specified. Further provides that the purpose of the EHEA is to prohibit acts that are contrary to that policy and to provide remedies therefor. (Section 66251.)
3. Prohibits discrimination against any person on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. (Section 66270.)
4. Provides that “disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code”, for the purpose of 1) and 2), includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. (Section 66260.6.)
5. Provides that no person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state (including the California State University). (Government Code Section 11135 (a).)
6. With respect to K-12 public schools, provides that it is the policy of the State of California to afford all persons in those schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, equal rights, and opportunities in the educational institutions of the state. (Section 200 (emphasis added).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: This bill seeks to clarify that, under the Equity in Higher Education Act, all persons in post-secondary educational institutions are entitled to equal rights and freedom from discrimination on the basis of their immigration status.

According to the author:

AB 699 (O’Donnell, Ch. 493, Stats. 2017) required the Attorney General to create model policies limiting assistance with immigration enforcement at K-12 public schools. It also amended Education Code Section 200 to now include “immigration status” as a covered basis under the Educational Equity chapter’s declaration of purpose.

SB 691 would create parity between higher education and K-12 public schools in terms of state policies on educational equity. Mirroring the change made by AB 699, the language that amended EDC Section 200 would be included in EDC Section 66251 under the Donahoe Higher Education Act’s Chapter on Equity in Higher Education. Language would now include “immigration status” as a covered basis for educational equity as was done in last year’s AB 699 for K-12 public schools.

The Equity in Higher Education Act does not explicitly list immigration status as a covered basis for equal rights and opportunities offered to all people in postsecondary educational institutions in California. Discrimination on the basis of immigration status in public schools is already prohibited by California law. This bill’s inclusion of “immigration status” among the protected classes from discrimination in California public schools would just make that explicitly clear.

California law ensures educational opportunity for immigrant students in California schools and universities. Existing state law seeks to ensure equal opportunity in state educational programs generally by prohibiting discrimination against many protected classes of individuals. For example, Government Code Section 11135 prohibits any person in this state from being unlawfully denied, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, full and equal access to the benefits of any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

K-12 schools. With regard to K-12 education, all children have a right to attend public school, regardless of immigration status, under the U.S. Supreme Court's landmark decision in Plyler v. Doe (1982) 457 U.S. 202. Subsequently, California voters attempted to restrict the ability of undocumented students to attend California public schools when they passed Proposition 187 in 1994. However, this part of Proposition 187 was ultimately found to be unenforceable by the federal courts (League of United Latin Am. Citizens v. Wilson (C.D. Cal. 1997) 997 F. Supp. 1244) because, as a state law, it was pre-empted by the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRA), a comprehensive statutory scheme enacted by Congress to determine aliens' eligibility for federal, state, and local benefits and services. Because the PRA preempts state law and expressly defers to the Plyler v. Doe ruling, the right of all children to receive a K-12 education in our public schools remains the law.

Last year, the Legislature passed and the Governor signed AB 699 (O’Donnell), Chap. 493, Stats. 2017, which codifies Plyler in the Education Code by expressly prohibiting discrimination based on immigration status in K-12 education. AB 699 also acts to ensure educational opportunity for immigrant students in a different way—specifically, by establishing various policies to be implemented by public schools in California that safeguard against immigration enforcement activities on K-12 school campuses.

Post-secondary educational institutions. Last year, the Legislature also approved and the Governor signed AB 21 (Kalra), Chap. 488, Stats. 2017, which urges higher education institutions in California to implement various prescribed policies and protections in order to safeguard against immigration enforcement on these campuses.

In the realm of higher education, where ability to pay tuition is a potential barrier that does not exist at the K-12 level, the Legislature has in the past enacted laws intended to ensure that undocumented students, who are ineligible for federal financial aid, nonetheless have access to an affordable state education. For example, in 2001 the Legislature passed AB 540 (Firebaugh), Chap. 814, Stats. 2001, to ensure that students who had graduated from and attended a California high school for at least three years, were exempted from paying out-of-state tuition at California community colleges and state universities, regardless of immigration status. In addition, the Legislature passed and the Governor signed SB 1139 (Lara), Chap. 786, Stats. 201, which makes any student who meets the requirements for admission eligible to participate in a medical school program and medical residency training program, regardless of immigration status. SB 1139 also prohibits grant and loan forgiveness programs from denying an application based on applicants' citizenship or immigration status.

Consistent with the legislation and policies described above, this bill seeks to further the purpose of AB 699 in the Equity in Higher Education Act and make clear that discrimination on the basis of immigration status is prohibited in post-secondary educational institutions in California.

Proposed author's amendments clarify that discrimination based on immigration status is already unlawful. Existing law, Education Code Section 66251, declares that it is the policy of the State of California to afford all persons in public schools equal rights and opportunities in the educational institutions of the state, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.6(a) of the Penal Code. Similarly, Section 66270 prohibits discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in Section 422.6(a) of the Penal Code.

A closer look at Penal Code Section 422.6(a) reveals that it incorporates by reference the characteristics listed in Section 422.55(a) which defines "hate crime" to include, among other things, the characteristic of nationality. The following section, Penal Code Section 422.56, defines nationality to include citizenship, country of origin, and national origin, for the purpose of Section 422.55 (emphasis added). In addition, it should be noted that Education Code Section 66261.3 also expressly defines "nationality" to include citizenship, country of origin, and national origin (emphasis added). Discrimination based on citizenship, however, is essentially equivalent to discrimination based on immigration status, which is what this bill seeks to prohibit in the Equity in Higher Education Act.

As currently in print, the bill expressly states that immigration status is included among those characteristics already covered or "contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code." According to the author, this language mirrors the changes made by AB 699 to the Education Code pertaining to K-12 schools, and it is the author's intent to avoid any negative implication that might be created by adding immigration status to the list of characteristics in Sections 66251 (and Sections 66260.6 and 66270, respectively)—specifically, the implication that such discrimination is currently permitted because it is not already expressly prohibited. Importantly, however, AB 699 also contained a legislative declaration that the changes it made to the non-discrimination sections of the Education Code were, in fact, declaratory of existing law—which helps explain why the inclusion of "immigration status" was worded particularly so. This bill differs from AB 699 in that it currently does not contain the same declaratory language, although it mirrors the rest of the operative language of the bill.

In order to clarify that discrimination based on immigration status is already unlawful in post-secondary institutions and that this bill is simply making this fact more transparent, proposed author's amendments to the bill state that the amendments made to Education Code Sections 66251, 66260.6, and 66270 by this bill are declaratory of existing law. This proposed amendment also helps harmonize the interpretation of this bill with AB 699—the bill establishing current law which it seeks to adopt and extend to the higher education arena. The proposed amendment reads:

On page 2, after line 34, insert:

SEC 5. The Legislature finds and declares that the amendments of Sections 66251, 66260.6, and 66270 of the Education Code made by this act do not constitute a change in, but are declaratory of, existing law.

Proposed amendment to clarify offers of admission or financial aid to nonimmigrant students. As currently in print, the bill seeks to guarantee all persons equal rights and opportunities, and freedom from discrimination, in the postsecondary educational institutions of the state, regardless of immigration status. However, as mentioned above, a student's immigration status may make that student ineligible, under federal rules, for federal financial aid or admission to a federal program or fellowship that provides financial support, depending on the circumstance (for example, whether the student is an undocumented immigrant to the U.S., or a nonimmigrant foreign national temporarily in the country on a student visa). This raises the question whether a college or university can truly provide "equal rights and opportunities" under this statute to certain categories of students in cases where federal law prohibits it based on immigration status. Furthermore, because existing law allows these nondiscrimination provisions to be enforced through a civil action (Section 66292.4), post-secondary institutions may be rightfully concerned that they could be forced to defend a lawsuit for breach of this bill, should it become law, for actions taken simply to comply with federal law.

In order to address this concern, the author proposes to amend the bill to clarify that nothing in the Act shall be construed to require a postsecondary institution to offer admission or student financial aid to certain nonimmigrant foreign students, as defined by reference to specified provisions of the federal Immigration and Nationality Act (INA) (8 U.S.C. Section 1101). The amendment is:

On page 2, after line 34, insert:

66270.3. Nothing in this chapter shall be construed to require a postsecondary institution to offer admission or student financial aid to a nonimmigrant alien within the meaning of paragraph (15) of subdivision (a) of Section 1101 of Title 8 of the United States Code, as that paragraph exists on January 1, 2019, except for students granted status pursuant to subparagraphs (T) or (U) of paragraph (15), as specified.

Origin of paragraph (15) language restricting applicability to nonimmigrants. Paragraph (15) of subdivision (a) of Section 1101 of Title 8 of the United States Code specifies almost two dozen classes of "nonimmigrant aliens" which are excluded from the INA's definition of the term "immigrant." According to the author, the proposed amendment to this bill mirrors other provisions of the Education Code that also refer to paragraph (15) of subdivision (a) of 8 U.S.C. Section1101 in order to draw a distinction between immigrant and nonimmigrant students for purposes of eligibility for certain benefits. For example, AB 540 (2001) exempts certain nonresident students, including persons without lawful immigration status, from paying more costly nonresident tuition at California State Universities and community colleges—with the exception of "nonimmigrant aliens within the meaning of paragraph (15) of subsection (a) of Section 1101 of Title 8 of the United States Code." (Education Code 68130.5 (a).)

According to the author, the legislative history of AB 540 shows that this language was used to make clear that nonimmigrant foreign nationals, including ambassadors, foreign ministers, diplomats, and others listed in paragraph (15) would not be exempt from paying nonresident tuition because that was not the subgroup of people judged to be in need of the benefit conferred by the bill. Several committee analyses of the bill indicate that this exemption language was amended into AB 540 after the Chief Legislative Counsel issued an opinion that an exemption from nonresident tuition (as previously proposed under AB 1197, the predecessor to AB 540) would not violate relevant federal law if it did not tamper with a student's residency status under federal law and excluded from out-of-state tuition exemptions foreign residents as specified in the paragraph (15) of subdivision (a) of 8 U.S.C. Section 1101.

Among other things, SB 1139 (Lara), Chap. 786, Stats. 201, provides that any student who meets the requirements for admission is eligible to participate in a medical school program and medical residency training program, regardless of immigration status, including undocumented students and those who are exempt from nonresident tuition under AB 540. SB 1139, by the same author as this bill, recognized that some classes of "nonimmigrant aliens"—specifically, those who qualify as victims of human trafficking or victims of crime or abuse under subparagraphs (T) and (U), respectively—do in fact qualify for federal financial aid benefits, and therefore were exempted from the nonimmigrant exemption. Accordingly, as proposed to be amended, this bill follows the same approach as SB 1139 and likewise excludes victims of human trafficking or victims of crime or abuse under subparagraphs (T) and (U) from the class of nonimmigrant aliens to whom the bill's protections are not intended to apply.

ARGUMENTS IN SUPPORT: In support of the bill, the California Immigrant Policy Center writes:

This bill continues to build on the investment and actions that the legislature has taken to ensure immigrant youth have equitable access to higher education. Last year’s AB 699 (O’Donnell) amended Education Code Section 200 to now include immigration status as a covered basis under the Educational Equity chapter’s declaration of purpose. SB 691 would mirror the language made by AB 699 to now include immigration status in the Donahoe Higher Education Act’s chapter on Equity in Higher Education found in EDC Section 66251.

SB 691 aligns state policies on educational equity between higher education and K-12 public schools. By adding immigration status to the list of protected characteristics in the Equity in Higher Education Act, this bill prohibits discrimination based on immigration status in California’s public post-secondary institutions. It is more imperative now than ever to invest in California’s future by protecting the right of all students to learn without fear, by ensuring educational environments are safe and welcoming.

The California State Student Association (CSSA) writes in support:

The national political climate has had a major impact on our California State University (CSU) system students, particularly for our students who are immigrants to this country – documented or otherwise. It is absolutely critical for these students, as well as our entire student population, to know that it is against state law to discriminate based on their immigration status.

REGISTERED SUPPORT / OPPOSITION:

Support

American Academy of Pediatrics – California

California Asian Pacific Chamber of Commerce

California Health Advocates

California Immigrant Policy Center

California State PTA

California State Student Association

Disability Rights California

Los Angeles County Office of Education

San Jose Evergreen Community College District

University of California Student Association

Opposition

None on file

Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 691

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 1/9/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Author

DIGEST:

This bill provides that it is the policy of the State of California to afford all persons, regardless of immigration status, equal rights and opportunities in the postsecondary educational institutions of the state.

ANALYSIS:

Existing law:

1. Establishes the Equity in Higher Education Act (Act), which provides that it is the policy of the State of California to afford all persons, regardless of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation equal rights and opportunities in the postsecondary educational institutions of the state, as specified. (Ed. Code Sec. 66251 et seq.)
2. Prohibits a person from being subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (including sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes, 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. (Ed. Code Sec. 66270.)
3. Provides specified guidance and requirements related to a discrimination complaint against a post-secondary educational institution, including the following:

• persons who have filed a complaint shall be advised by the educational institution that they may have civil law remedies, as specified;
• that nothing in the Act shall require an exhaustion of remedies provided by the institution before a civil law remedy may be purchased; and
• a moratorium requiring that a student file a discrimination complaint with the educational institution 90 days prior to seeking any civil remedy, as specified. (Ed. Code Sec. 66292.3.)

This bill adds “including immigration status” to the provisions above.

Background

California provides a host of nondiscrimination statutes that generally seek to ensure equal opportunities in state educational programs by prohibiting discrimination against protected classes of individuals. (See e.g. Ed. Code Sec. 200 et seq., entitled Educational Equity; see also 5 C.C.R. Sec. 4900 et seq. for regulations that seek to ensure compliance with federal and state nondiscrimination laws.) With respect to higher education institutions, California’s Equity in Higher Education Act prohibits a person from being subject to discrimination on the basis of certain characteristics 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. (Ed. Code Sec. 66270 et seq.) These protected bases include disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (such as sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes. (Ed. Code Sec. 66270.)

With regard to K-12 educational institutions, the U.S. Supreme Court has long held that all children, regardless of immigration status, have a right to attend public school. The Court first laid down this principle in its landmark decision, Plyer v. Doe (1982) 457 U.S. 202. Subsequently, California voters attempted to restrict the ability of undocumented students to attend California public schools when they passed Proposition 187 in 1994. Applying, among other things, the holding in Plyer v. Doe, the federal courts first enjoined and then ultimately approved a settlement striking down this aspect of Proposition 187. (League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 20, 1995) 908 F. Supp. 755.; League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 14, 1997) 997 F. Supp. 1244.)

Last year the Senate passed, and the Governor signed into law, AB 699 (O’Donnell, Chapter 493, Statutes of 2017) which, among other things, codified Plyer by amending various Education Code provisions to prohibit discrimination based on immigration status in K-12 public schools. By adding “immigration status” to the list of protected characteristics in the Equity in Higher Education Act, this bill seeks to prohibit discrimination based on immigration status in California’s public post-secondary institutions as well.

FISCAL EFFECT: Appropriation: Fiscal Com.: Yes Local:

SUPPORT: (Verified 1/18/18)

Disability Rights California

OPPOSITION: (Verified 1/18/18)

None received

ARGUMENTS IN SUPPORT: The author writes:

California has worked to ensure that undocumented students are able to attain post-secondary education in the same way every other Californian is able to do so. While not exclusively for undocumented students, AB 540 (Firebaugh, Ch. 814, Stats. 2001) exempts California nonresidents from paying nonresident tuition at our public higher education institutions if they meet certain criteria. Including immigration status as a covered basis under the Equity in Higher Education Act will make very clear California’s continued commitment to all people looking to further their education. With the successful passage of AB 699 (O’Donnell, Ch. 493, Stats. 2017), the Legislature has demonstrated that it is already willing to support this same language in the Educational Equity Chapter (Ed. Code Sec. 200) for students in K-12 public schools. By including this language for postsecondary educational institutions, California will

ensure that this principle and policy is carried throughout a student’s entire educational career in our public school systems.

Prepared by:

1/24/18 15:33:30

**** END ****

 THIRD READING  

Bill No: SB 691

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-2, 1/9/18

AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski

NOES: Moorlach, Anderson

SUBJECT:

SOURCE: Author

DIGEST:

This bill provides that it is the policy of the State of California to afford all persons, regardless of immigration status, equal rights and opportunities in the postsecondary educational institutions of the state.

ANALYSIS:

Existing law:

1. Establishes the Equity in Higher Education Act (Act), which provides that it is the policy of the State of California to afford all persons, regardless of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation equal rights and opportunities in the postsecondary educational institutions of the state, as specified. (Ed. Code Sec. 66251 et seq.)
2. Prohibits a person from being subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (including sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes, 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. (Ed. Code Sec. 66270.)
3. Provides specified guidance and requirements related to a discrimination complaint against a post-secondary educational institution, including the following:

• persons who have filed a complaint shall be advised by the educational institution that they may have civil law remedies, as specified;
• that nothing in the Act shall require an exhaustion of remedies provided by the institution before a civil law remedy may be purchased; and
• a moratorium requiring that a student file a discrimination complaint with the educational institution 90 days prior to seeking any civil remedy, as specified. (Ed. Code Sec. 66292.3.)

This bill adds “including immigration status” to the provisions above.

Background

California provides a host of nondiscrimination statutes that generally seek to ensure equal opportunities in state educational programs by prohibiting discrimination against protected classes of individuals. (See e.g. Ed. Code Sec. 200 et seq., entitled Educational Equity; see also 5 C.C.R. Sec. 4900 et seq. for regulations that seek to ensure compliance with federal and state nondiscrimination laws.) With respect to higher education institutions, California’s Equity in Higher Education Act prohibits a person from being subject to discrimination on the basis of certain characteristics 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. (Ed. Code Sec. 66270 et seq.) These protected bases include disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (such as sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes. (Ed. Code Sec. 66270.)

With regard to K-12 educational institutions, the U.S. Supreme Court has long held that all children, regardless of immigration status, have a right to attend public school. The Court first laid down this principle in its landmark decision, Plyer v. Doe (1982) 457 U.S. 202. Subsequently, California voters attempted to restrict the ability of undocumented students to attend California public schools when they passed Proposition 187 in 1994. Applying, among other things, the holding in Plyer v. Doe, the federal courts first enjoined and then ultimately approved a settlement striking down this aspect of Proposition 187. (League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 20, 1995) 908 F. Supp. 755.; League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 14, 1997) 997 F. Supp. 1244.)

Last year the Senate passed, and the Governor signed into law, AB 699 (O’Donnell, Chapter 493, Statutes of 2017) which, among other things, codified Plyer by amending various Education Code provisions to prohibit discrimination based on immigration status in K-12 public schools. By adding “immigration status” to the list of protected characteristics in the Equity in Higher Education Act, this bill seeks to prohibit discrimination based on immigration status in California’s public post-secondary institutions as well.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 1/12/18)

Disability Rights California

OPPOSITION: (Verified 1/12/18)

None received

ARGUMENTS IN SUPPORT: The author writes:

California has worked to ensure that undocumented students are able to attain post-secondary education in the same way every other Californian is able to do so. While not exclusively for undocumented students, AB 540 (Firebaugh, Ch. 814, Stats. 2001) exempts California nonresidents from paying nonresident tuition at our public higher education institutions if they meet certain criteria. Including immigration status as a covered basis under the Equity in Higher Education Act will make very clear California’s continued commitment to all people looking to further their education. With the successful passage of AB 699 (O’Donnell, Ch. 493, Stats. 2017), the Legislature has demonstrated that it is already willing to support this same language in the Educational Equity Chapter (Ed. Code Sec. 200) for students in K-12 public schools. By including this language for postsecondary educational institutions, California will

ensure that this principle and policy is carried throughout a student’s entire educational career in our public school systems.

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

1/12/18 13:53:48

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 691 (Author:Lara)

Version: January 3, 2018

Hearing Date: January 9, 2018

Fiscal: No

Urgency: No

Consultant: NR

SUBJECT

Educational equity: immigration status

DESCRIPTION

This bill would provide that it is the policy of the State of California to afford all persons, regardless of immigration status, equal rights and opportunities in the postsecondary educational institutions of the state.

BACKGROUND

California provides a host of nondiscrimination statutes that generally seek to ensure equal opportunities in state educational programs by prohibiting discrimination against protected classes of individuals. (See e.g. Ed. Code Sec. 200 et seq., entitled Educational Equity; see also 5 C.C.R. Sec. 4900 et seq. for regulations that seek to ensure compliance with federal and state nondiscrimination laws.) With respect to higher education institutions, California’s Equity in Higher Education Act prohibits a person from being subject to discrimination on the basis of certain characteristics 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. (Ed. Code Sec. 66270 et seq.) These protected bases include disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (such as sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes. (Ed. Code Sec. 66270.)

With regard to K-12 educational institutions, the U.S. Supreme Court has long held that all children, regardless of immigration status, have a right to attend public school. The Court first laid down this principle in its landmark decision, Plyer v. Doe (1982) 457 U.S. 202. Subsequently, California voters attempted to restrict the ability of undocumented students to attend California public schools when they passed Proposition 187 in 1994. Applying, among other things, the holding in Plyer v. Doe, the federal courts first enjoined and then ultimately approved a settlement striking down this aspect of Proposition 187. (League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 20, 1995) 908 F. Supp. 755.; League of United Latin Am. Citizens v. Wilson (C.D. Cal. Nov. 14, 1997) 997 F. Supp. 1244.)

Last year this Committee passed, and the Governor signed into law, AB 699 (O’Donnell, Ch. 493, Stats. 2017) which, among other things, codified Plyer by amending various Education Code provisions to prohibit discrimination based on immigration status in K-12 public schools. By adding “immigration status” to the list of protected characteristics in the Equity in Higher Education Act, this bill seeks to prohibit discrimination based on immigration status in California’s public post-secondary institutions as well.

CHANGES TO EXISTING LAW

1. Existing law establishes the Equity in Higher Education Act (Act), which provides that it is the policy of the State of California to afford all persons, regardless of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation equal rights and opportunities in the postsecondary educational institutions of the state, as specified. (Ed. Code Sec. 66251 et seq.)

This bill would add “immigration status” to the provision above.

1. Existing law, the Act, prohibits a person from being subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is listed under Section 11135 of the Government Code prohibiting discrimination in state or state-funded programs or activities on certain bases (including sex), or any other characteristic contained in the Penal Code statute prohibiting hate crimes, 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. (Ed. Code Sec. 66270.)

Existing law provides specified guidance and requirements related to a discrimination complaint against a post-secondary educational institution, including the following:

• persons who have filed a complaint shall be advised by the educational institution that they may have civil law remedies, as specified;
• that nothing in the Act shall require an exhaustion of remedies provided by the institution before a civil law remedy may be purchased; and
• a moratorium requiring that a student file a discrimination complaint with the educational institution 90 days prior to seeking any civil remedy, as specified. (Ed. Code Sec. 66292.3.)

Existing law, Section 11135 of the Government Code, prohibits any person in this state from being unlawfully denied, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, genetic information, or disability, full and equal access to the benefits of, or the unlawful discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. (Gov. Code Sec. 11135(a).) Existing state law provides that this protection also applies to any perception that a person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics. (Gov. Code Sec. 11135(f).)

Existing law, in relevant part, provides that Section 11135 et seq. and its implementing regulations may be enforced by a civil action for equitable relief, which may be independent of any other rights and remedies. (Gov. Code Sec. 11139.)

COMMENT

1. Stated need for the bill

According to the author:

California has worked to ensure that undocumented students are able to attain post-secondary education in the same way every other Californian is able to do so. While not exclusively for undocumented students, AB 540 (Firebaugh, Ch. 814, Stats. 2001) exempts California nonresidents from paying nonresident tuition at our public higher education institutions if they meet certain criteria. Including immigration status as a covered basis under the Equity in Higher Education Act will make very clear California’s continued commitment to all people looking to further their education. With the successful passage of AB 699 (O’Donnell, Ch. 493, Stats. 2017), the Legislature has demonstrated that it is already willing to support this same language in the Educational Equity Chapter (Ed. Code Sec. 200) for students in K-12 public schools. By including this language for postsecondary educational institutions, California will ensure that this principle and policy is carried throughout a student’s entire educational career in our public school systems.

1. Protection from discrimination based on immigration status in post-secondary institutions is consistent with recent policies enacted by State of California

Seeking to ensure that immigrant students may pursue a public education in California despite the uncertainty of federal immigration law, California has recently passed a number of legislative measures to ensure that all Californians, regardless of immigration status, are able to attain a post-secondary education.

For example, to ensure that undocumented students, who are ineligible for federal financial aid, may have access to an affordable state education, the Legislature passed AB 540 (Firebaugh, Ch. 814, Stats. 2001) to ensure that students, regardless of immigration status, who had graduated from and attended a California high school for at least three years, were exempted from paying out-of-state tuition at California community colleges and State universities. This past year, the Legislature passed SB 54 (De León, Ch. 495, Stats. 2017) which required, among other things, that the California Attorney General publish model policies limiting assistance with immigration enforcement to the fullest extent possible (consistent with federal and state law) at public schools and other public facilities to assure that public facilities remain safe and accessible to all California residents, regardless of immigration status. Similarly, AB 21 (Kalra Ch. 488, Stats. 2017) urged California’s post-secondary educational institutions take certain actions in response to the possibility of immigration law enforcement activity on their campuses. Finally, AB 699 (O’Donnell, Ch. 493, Stats. 2017), which prohibits discrimination in K-12 public education, took effect this month.

Consistent with the legislation and policies described above, this bill seeks to ensure that persons, regardless of immigration status, may pursue, free from discrimination, a college education at a California institution.

1. Bill as drafted might not provide meaningful protection against discrimination based on immigration status

The Equity in Higher Education Act begins with Education Code Section 66251 providing the following:

It is the policy of the State of California to afford all persons, regardless of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other basis that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code, equal rights and opportunities in the postsecondary educational institutions of the state. The purpose of this chapter is to prohibit acts that are contrary to that policy and to provide remedies therefor.

As with many acts, this initial provision functions somewhat as an introduction. It seeks to illustrate the purpose of the Act, but provides no specific mechanism by which a person who experienced discrimination could seek redress. The Act then goes on to provide such mechanisms: detailed definitions of the various protected classes; specific prohibitions of discrimination; and procedural guidelines in seeking civil or other relief.

As drafted, this bill adds the phrase “including immigration status” only to the introductory provision provided above. Without adding the language to the other operative statutory provisions, it is unlikely that a person would be able to use the protective provisions of the Act to address specific acts of discrimination. Accordingly, the author may wish to amend the bill to include “immigration status” in the other relevant sections within the Act, and additionally consider whether adding “immigration status” to other corresponding code provisions would aid in the enforcement of the Act.

The following amendments would add “immigration status” to the definitions found within the Act and the provision prohibiting discrimination based on specified characteristics to ensure that immigration status is protected to the same degree as the other characteristics listed in the Act.

Suggested amendments

1. Ed. Code Sec. 66260.6 is amended to read: “Disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status,” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
2. Ed Code Sec. 66270 is amended to read: No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code, including immigration status, in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid.
3. Medical residency programs

SB 1139 (Lara, Ch. 786, Stats. 2016) made any student, including a person without lawful immigration status, who meets the requirements for admission, eligible to participate in a medical school program and medical residency training program, and prohibited specified grant and loan forgiveness programs from denying an application based on applicants citizenship or immigration status.

Despite SB 1139, some medical schools have raised concerns regarding the ability of undocumented students to complete medical residency programs. Specifically, there are programs, including medical residencies and fellowships, which have a federal component, and a student without legal status may be unable to finish the program. Accordingly, these institutions question their ability to provide “equal rights and opportunities” in cases where the federal law prohibits it.

In response, the author writes “it is important to acknowledge that there is a shortage of doctors in California. It is critical to figure out how we can meet this need. People who are willing, able, and qualified should be able to study and practice medicine. This should be the case for all fields of study, beyond just the medical profession. Our institutions of higher learning should be as inclusive as possible and committed to furthering the education of all people, regardless of status. In situations where federal funding is restricted or fellowships require legal status, we are hopeful that educational institutions in California will invest in and find innovative solutions for the most qualified students so they do not miss out on opportunities. Funding for programs, or the restrictions as a result of federal funding, should not be the sole determining factor for admissions. This practice will be a benefit not only to the individual but to the state as well.”

Support: None Known

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation:

AB 21 (Kalra Ch. 488, Stats. 2017) See Comment 2.

AB 699 (O’Donnell, Ch. 493, Stats. 2017) See Background.

SB 54 (De León, Ch. 495, Stats. 2017) See Comment 2.

SB 1139 (Lara, Ch. 786, Stats. 2016) See Comment 4.

AB 540 (Firebaugh, Ch. 814, Stats. 2001) See Comment 2.

Prior Vote: Prior vote not relevant.

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