California legislators could soon wipe out the social and cultural exemptions afforded to state religious schools that they depend upon for their identity.

Senate Bill 1146, now moving through committee in the Assembly, “aims to include all colleges and universities receiving state financial assistance together with students receiving state financial aid under the authority of the Equity in Higher Education Act, which prohibits discrimination based on sex,” as Christianity Today noted. “The bill, authored by state Senator Ricardo Lara, was passed by the Assembly’s Higher Education Committee with an 8-2 vote and is now with the Committee on the Judiciary.”

Instant controversy

Intentionally or not, Lara poked a hornet’s nest. “The bill has created a storm of controversy in the Legislature,” the Los Angeles Times observed. “It was approved by a sharply divided state Senate last month,” with critics charging that its language was overbroad, vague and out of sync with the First Amendment’s protections on freedom of association and religious practice. “The bill would limit conscience protections to only those schools that prepare students for ministry, teach theology or prepare students for other pastoral careers,” charged Matt Cover at OpportunityLives. “If a school tried to maintain its religious identity, it could be faced with crippling lawsuits, forcing schools to make the choice between shutting down or eliminating their religious nature, depriving their students the opportunity of an education that incorporates their religious views alongside academic learning.”

Lara, D-Bell Gardens, seemed somewhat taken aback by the firestorm. The state senator “said it is not his intent to interfere with what is taught in the classroom or requirements that students attend chapel twice a week, and that he is willing to consider changes in his bill to address some concerns,” according to the Times, although he added “he is adamant that religious universities should be subject to some of the anti-discrimination laws that apply to public colleges.”

Stark choices

In-state religious leaders responded with furor — partly because of how close to the state the bill would draw faith-based schools, and partly because of how far away they would be pushed if they tried not to comply. “The bill effectively eliminates the religious exemption under current law that allows Christian colleges and universities to operate in accordance with their beliefs, including the freedom to hire only Christian faculty and staff,” wrote Kurt Krueger, president of Concordia University Irvine. “If passed without amendments, the new law would also very likely disqualify students attending California Christian colleges and universities from eligibility for Cal Grants, a key state-level student aid program.”

Lara’s bill and its implications also quickly resonated nationwide. Billy Graham Evangelistic Association president Rev. Franklin Graham tore into the proposal on Facebook, portraying it as the spear tip of a nationwide “anti-Christian movement.” 

“Now the California state Legislature wants to force Christian Universities like Biola University to conform to secular standards,” he wrote. “In effect, we would no longer have Christian universities in this state — and unfortunately this secularism is like an evil plague that spreads.”

Following federal cues

Biola has become something of a symbol of the legal front in the culture war around faith and sexual politics. “[I]n response to signals from the federal government that transgender K-12 students should be protected under anti-discrimination laws,” EdSource recalled, “Biola decided to apply for a religious exemption that would give the university the right to expel transgender students and refuse to admit, house or accommodate them, without jeopardizing federal funding.” Under current law, California affords “a blanket exemption to the anti-discrimination provisions of the Equity in Higher Education Act to all colleges that are ‘controlled by a religious organization,'” as the site added. SB1146 would take away that exemption, prohibiting any form of restriction on “lesbian, gay, bisexual and transgender students in admissions, housing and campus activities.”

But the decision written by Judge Anthony Kennedy could have profound implications for public education, starting with the Vergara lawsuit in Los Angeles. In that case, Superior Court Judge Rolf Treu ruled last summer that California laws protecting tenured teachers from being fired for incompetence amounted to unconstitutional affronts to minority students’ right to an equal public education because the laws have the effect of funneling the worst teachers to the most troubled schools in poor minority areas. The ruling is being appealed by the state government.

Treu’s decision cited how poorly Latino and African-American students did in standardized tests administered by Los Angeles Unified School District. This reflected the arguments made by the high-powered legal team hired by a Silicon Valley billionaire who represented the students in the Vergara case.

In the fall 2014 “Education Next” reform journal, Joshua Dunn of the University of Colorado-Colorado Springs and Martha Derthick, a University of Virginia emeritus professor, considered the implications of Vergara’s success. “Should California’s courts accept the group’s legal rationale, which hinges on disparate-impact analysis, the floodgates could open for litigation calling for even greater judicial control over California’s schools. … Anyone could challenge any law, however neutral in design, with a claim that it was somehow related to an unequal outcome.”

The broadness of this legal argument was bluntly attacked in the state’s appeal, which asserted that Treu’s ruling offered “no factual and legal bases” for its conclusion that California’s teacher-labor laws were unconstitutional.

Texas case pivoted on de facto housing segregation

There are two big reasons to wonder, however, if the U.S. Supreme Court ruling will affect the Vergara appeal, which seems certain to end up before the California Supreme Court.

The first is that Texas’ implementation of federal housing laws meant to discourage housing segregation isn’t necessarily an apples-to-apples comparison with California’s implementation of education laws. Treu’s opinion cites Brown v. Board of Education, the landmark 1954 Supreme Court case that led to the declaration that “separate but equal” public schools were unconstitutional.

Texas is accused of implementing a federal law in a way that hasn’t changed historic patterns of racial segregation. California isn’t Texas; it has embarrassing moments, such as this later-invalidated 1964 referendum, but it can’t be considered a Jim Crow state when looking at the historical context.

The second is that justices seem to be aware that reducing legal judgments about what is prohibited discrimination to raw numbers detailing what racial groups are doing well and which aren’t is a recipe for legal chaos.

The fear of this being the eventual result led some observers to be appalled by Kennedy’s decision. But others noted that it has escape hatches for future rulings involving “disparate impact.” This was pointed out by law partners and employment law experts Paul F. Hancock and Andrew C. Glass in their analysis for Scotusblog.com.

In describing the requisite pleadings-stage safeguards, the Court relied upon Wards Cove v. Atonio, in which it held that to sustain a disparate-impact case, a plaintiff must identify a specific policy of the defendant and adequately plead that such policy is the cause of the disparity. To distinguish meritless from meritorious claims, the Court directed lower courts to “avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations” into every FHA decision. Thus, the Court held that a “racial imbalance does not, without more, establish a prima facie case of disparate impact,” and that a plaintiff can no longer maintain a disparate-impact claim by pleading a mere “statistical disparity.” Disallowing claims where a plaintiff cannot establish a “robust” causal link to a defendant’s actual policies serves to eliminate suits seeking to hold a defendant liable for alleged racial disparities it “did not create.”

“The court said its seven justices unanimously voted to heed a recommendation by its ethics advisory committee barring judges’ affiliation with the organization,” the Associated Press reports. Eleven years ago, the AP observes, the court barred judges from joining discriminatory organizations, but reserved an exemption for nonprofit youth groups. With the demise of that carve-out, the court has brought onto itself a swift and predictable political backlash.

Legal questions

Within the legal community, a group including Stanford law professor Michael McConnell filed a brief in opposition to the change to the state judicial code. As Ed Whelan reports at National Review Online, the brief argued the California Supreme Court could well have fallen afoul of the U.S. Constitution’s rules on religious tests and childrearing:

“Prohibiting a judge who is a member of a religious congregation from participating in its scout troop (or cub scout pack) prevents the judge from fully participating in the life of his or her religious congregation, and in that congregation’s ministry. It comes close to a religious disqualification based on the judge’s religious activities (and could even be a form of attainder or ‘black-listing,’ a practice with a very unfortunate history). The United States Constitution explicitly prohibits religious tests for any public office. The prohibition also runs afoul of the protection of religious rights of parents with regard to the building of character of their children, see Wisconsin v. Yoder, supra, which is a key purpose of the Boy Scouts.”

What’s more, the court’s 1996 decision to preserve the youth organization carve-out was justified in terms that explicitly referred to the state code barring judges from discriminatory group membership. As The Daily Signal notes, the California Code of Judicial Ethics required the accommodation of “individual rights of intimate association and free expression” — a tenet that the bar on Boy Scout involvement would seem to plainly violate.

Questions are already being raised as to whether the new rules would bar judges, for instance, from participating in the Catholic Church or the Church of Latter-Day Saints.

Cultural pushback

Nevertheless, defenders of the court’s decision emphasize the damage to the state judiciary’s reputation if judges are allowed to participate in Boy Scout activities. Although, according to the Los Angeles Times, California judges and attorneys warned against indulging in political correctness, the court advisory committee that reviewed judicial ethics concluded that eliminating the youth group exception would “promote the integrity of the judiciary,” in keeping with the purpose of the code.

As the Times notes, that issue resonates strongly with Californians who don’t see any rational basis for the Boy Scouts’ rules against non-heterosexual staff or volunteer leaders. James Humes, an openly gay justice on the state’s Court of Appeal, told the Times the carve-out protecting judge affiliations with the Scouts “incites distrust in judicial impartiality, demeans gay and lesbian judges and is offensive and harmful.”

The issue boils down to what interpretation of that phrase is more reasonable — one where the judiciary’s integrity really is damaged in California by judges’ association with the Boy Scouts, and one where it is not. Because large numbers of Californians agree stridently with the first interpretation, but large numbers of other Californians agree instead with the second, the debate over the court’s decision is set to sharpen even further.

‘Perversion files’

Complicating the matter further is the unflattering reputation the Scouts have acquired for doing too little to address internal abuse.

The organization recently settled a sex abuse case brought by a plaintiff who alleged he was molested by a Boy Scouts volunteer eight years ago.

As the Santa Cruz Sentinel reports, the deal “will keep years’ worth of ‘perversion’ files detailing sex abuse allegations secret from the public.”

What’s the definition?

First, look at HUD’s mission:

HUD’s mission is to create strong, sustainable, inclusive communities and quality affordable homes for all.

HUD is working to strengthen the housing market to bolster the economy and protect consumers; meet the need for quality affordable rental homes: utilize housing as a platform for improving quality of life; build inclusive and sustainable communities free from discrimination; and transform the way HUD does business.

Last week HUD proposed new rules requiring counties and other entities receiving federal grant dollars to “affirmatively further fair housing” in the suburbs for minorities. Grantees who fail to comply will be denied federal funding.

Calling the plan “A better bargain for the middle class,”  President Barack Obama and HUD Secretary Shaun Donovan said, “It’s time to turn the page on an era of housing bubbles and taxpayer bailouts, and build a new housing finance system that will provide secure homeownership for responsible middle class families.”

A Better Bargain for Responsible, Middle Class Homeowners:

* Help responsible families save $3,000 a year by refinancing while mortgage rates are still low

* Take executive action to cut red tape so responsible families can get a mortgage

* Fix our broken immigration system to increase home values

* Rebuild communities hit hardest by foreclosure

* Create and preserve affordable rental housing by passing a bipartisan Senate proposal

Never mind the federal government is largely responsible for manipulating the last housing meltdown. California’s real estate market is only just now starting to show signs of improvement. What better way to weaken it again?

According to HUD, long-term solutions to usher in “fair housing barriers,” include “helping people gain access to different neighborhoods and channeling investments into under-served areas.”

And, HUD will be pressuring suburban neighborhoods and landlords to take the federal low-income Section 8 housing chits.

Social justice, social engineering

“In what may be the most ambitious social-engineering project undertaken by the federal government, the administration is mapping every neighborhood in America by race,” Investors Business Daily reported. “The stated purpose is to use the data to compel local officials to loosen zoning laws and build more public housing, thereby offering more poor inner-city minorities better opportunities for housing and education.”

And the purpose of this ridiculousness is forced racial integration.

If passed, HUD would direct local governments to “overcome historic patterns of segregation, … and foster inclusive communities for all,” through zoning ordinances and planning commissions using data on “racial and economic disparities” in their communities.

At the same time, HUD is pressuring suburban landlords to accept Section 8 housing vouchers. Any home for rent, in any neighborhood, could be targeted by county officials on behalf of HUD for Section 8 housing.

How will the feds accomplish this?

“First, there are steps we can take right now that could help immediately strengthen the housing market and make sure that no homeowners or communities are left behind by the housing recovery,” HUD’s Donovan said. “This includes helping more responsible homeowners save money by refinancing their mortgages, cutting red tape so responsible families can get a mortgage, helping hard-hit communities rebuild, and preserving access to affordable rental housing.”

“Second, President Obama put forward a plan to reform the housing finance system, centered on four core principles:

* Put private capital at the center of the housing finance system.

* End Fannie Mae and Freddie Mac’s failed business model so taxpayers are never again on the hook for bad loans and bailouts.

* Ensure widespread access to safe and responsible mortgages like the 30-year fixed rate mortgage in good and bad economic times.

* Support affordability and access to homeownership for creditworthy first-time buyers and access to affordable rental housing for middle class families and those aspiring to be.”

These are decisions and plans by people with ideological axes to grind. Sadly, people are just the pawns of these ideologues.

“We have got to shape a future where ladders of opportunity are available for all Americans,” Donovan said. “For African Americans, this is critically important.  Historically, for this community, the rungs on these ladders have been too far apart -– making it harder to reach the middle class.”

By forcing a victim mentality on everyone, we all lose. Welcome to an America where it no longer pays to work hard to get ahead.

This is just one of the many ways the government is destroying the hard working  middle class.

By Josephine Djuhana

A resolution that seeks to amend the California Constitution and undo the work of Proposition 209 for institutions of higher education is making its way through Sacramento and will likely be placed on the ballot in 2014.

SCA 5, authored by Sen. Ed Hernandez, D-West Covina, proposes “an amendment to the Constitution of the State, by amending Section 31 of Article I thereof, relating to public education.” Recently re-referred to the Senate Committee on Elections and Constitutional Amendments after passing the Committee on Education, the resolution specifically exempts public education institutions of higher learning from the requirements of Proposition 209.

In other words, SCA 5 allows schools to use race, sex, color, ethnicity or national origin as a consideration for accepting students or hiring employees. Using such criteria currently is banned by Prop. 209, which voters passed in 1996.

Janet Chin, a media spokesperson for Sen. Hernandez’s office in West Covina, told me the resolution would take steps to “ensure that universities reflect the diversity of the state.” She said long-term benefits would include creating equal opportunity for all Californians by having a “well-trained, diverse workforce” that is needed to compete in the global economy.

“Campuses have become less diverse” since Prop. 209 passed, Chin said. “Qualified individuals have been looked over.” Since Prop. 209, she said, minorities have been “underrepresented” in universities, and SCA 5 seeks to correct this error by securing the best and brightest students.

Prop. 209 and measures of merit

Ward Connerly, founder and chairman of the American Civil Rights Institute, told me Chin’s reasoning was “nonsense.” He sponsored Prop. 209.

“If they want the best and brightest, they will use merit,” Connerly said of university admissions processes. “They have the right to do that right now, free of any race consideration or discrimination.”

Connerly, a former University of California regent, highlighted higher education in the Golden State, starting with the UC system — in his words, “a very prized system” — which regularly secures the top 12.5 percent of students from California high schools. He also pointed to 23 campuses in the Cal State system, many of which, he said, were “equally as good as some UC campuses”; and to our community college system, with more than 100 college campuses across the state. “It defies logic,” he said to me, “for anyone to say that anyone in California doesn’t have a chance to get an education.”

“We’re a pluralistic society in California, probably the most on the planet,” he said. “We have to learn to treat everybody equally and not allow anybody to have any preference from any public institutions. It’s a mistake to now flirt with changing that and empowering public institutions to discriminate.”

Prop. 209, said Connerly, was the product of a very contentious battle in the state back in 1996. The ballot measure explicitly denied public institutions, including state and local governments, as well as universities, colleges and schools, the ability to discriminate against or give “preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.”

The results of Prop. 209 were robust. In fact, minority graduation rates actually increased after Prop. 209 was implemented. The measure “led to a more efficient sorting of minority students” according to research by Duke University:

“To address the robustness of the positive effects on graduation and the role of matching, we analyze unique data for all applicants and enrollees within the University of California (UC) system before and after Prop 209. The positive Prop 209 effects on minority graduation rates persist, even after controlling for observed and unobserved qualifications of UC enrollees. We present evidence that certain institutions are better at graduating more-prepared students while other institutions are better at graduating less prepared students and that these matching effects are particularly important for the bottom tail of the qualification distribution.”

The research also clearly demonstrated that students admitted with lower qualifications than their peers ended up learning less and had a drop out rate disproportionately higher than science majors.

“Sen. Hernandez is behind the times,” said Connerly. “It’s not forward-looking for him to inflict on the people of California another meaningless battle.”

Striving for diversity doesn’t solve the problem

Heather Mac Donald, a senior fellow at the Manhattan Institute, told me the UC system has “already been violating the spirit of Prop. 209 by importing obvious surrogates for race into its so-called ‘holistic’ admissions process.” The Hernandez bill, she said, would simply “open the floodgates of blatant racial references once again and allow UC to discriminate without apology.”

“There are high quality students that are not getting into these schools because there is already an informal quota,” she said.

The Fisher v. University of Texas at Austin case brought national attention to similar issues. The Supreme Court recently decided in a 7-1 ruling that the federal appeals court was wrong to dismiss Abigail Noel Fisher’s case, in which she argued that the University of Texas illegally discriminated against her because of her race.

The ruling written by Justice Anthony Kennedy essentially stated that diversity must not be an ultimately deciding factor in university admissions processes. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Kennedy wrote.

“Attaining diversity for its own sake is a nonstarter,” wrote Justice Clarence Thomas in his concurring opinion. “The pursuit of diversity as an end is nothing more than impermissible ‘racial balancing.’”

The San Francisco-based Asian American Legal Foundation, in their amicus brief filing for the Fisher case, underscored the problems with having such racial quotas. Asians, they write, have “historically been, and continue to be, denied access to public schools due to overt racial and ethnic prejudice as well as ostensibly well-intentioned ‘diversity’ programs such as the program at issue here.” The brief went on to explain:

“UT Austin is engaged in racial balancing without any remedial purpose. It is similarly denying applicants access solely because they are of the ‘wrong’ race or ethnicity. And it is proclaiming that its good faith should excuse the fact that it is trammeling on applicants’ civil rights.”

The same is essentially happening in California’s higher education system behind closed doors.

In regards to admissions, Ward Connelly echoed the majority opinion of the Supreme Court and said officers must “use neutral measures first” and “exhaust all avenues of race neutrality” before considering employing policies of racial preferences.

But exempting universities, colleges and schools from the requirements of Prop. 209 would do exactly the opposite.

Connerly and other critics insist that SCA 5 would create the framework for an even broader scope of racial discrimination against qualified students, regardless of their achievements or merit.

A bill claiming to “protect” the unemployed from discrimination by potential employers is making its way through the Legislature.

The government already protects racial minorities, veterans, older workers, women, pregnant women, breastfeeding women, children, the disabled, lesbian, gay, bisexual and transgender people, and religious individuals.

AB 1450, by Assemblyman Michael Allen, D-Santa Rosa, would prohibit employers from turning away applicants because they are unemployed, and states that employment status cannot used as consideration during the application, hiring and employment process.

There have been many attempts to add to the protected classifications including weight, and those living in areas of “general economic distress.”

Employers now face crimes of every imaginable kind because of California’s vast overreach into the workplace.  Any state agency investigator, whether from OSHA, Cal EPA, water resources, air resources, immigration, the fire marshall, parking enforcement, and all of the taxing agencies, can make an unannounced visit to employers, and demand to see documentation regarding the agency, or make a site visit to look for violations.

And on any given day, there isn’t an employer in the state who wouldn’t be cited for some random violation.

The state is now trying to look into the hearts of Human Resource managers to determine if they are discriminating against the unemployed.

When I was a HR manager, I coached my manufacturing managers to be wary of job applicants who might be government plants looking for ADA violators, discrimination cases, employment law violations, and the like. There are lawyers who also send fake applicants on job interviews, looking for employers to set up and sue.

In the manufacturing company in which I worked, a classified advertisement for a job often netted many applicants. But I was suspicious if a disabled person applied for a very physically demanding job. I was suspicious if a woman applied for a physical or dirty job historically held by strong, burley men. And, I was most suspicious of age discrimination cases – when someone nearing retirement applied for an entry-level job, or something they were grossly overqualified for.

This is what California’s ridiculous employment and discrimination laws have done to employers.

Now employers will have to be on the lookout for the unemployed – what an oxymoron.

Unfortunately, many of the habitually unemployed are unemployable. They don’t want a full-time job. But the Employment Development Department and CalWorks programs require them occasionally to prove they are actively looking for work.

If AB 1450 passes, those same people will be able to claim they were discriminated against if they are not offered the job.

Private sector employers tend to hire based on need, and do not make hiring decisions based on gender, race or other categories. It’s only the government which hires based on gender, sexual orientation, race, religion or veteran status. And it’s only the government which is always exempt from its own laws.

This bill is proof that California needs a part-time Legislature. Instead of working, California employers spend more than half of their time fending off the thousands of bad laws cooked up by a mostly irrelevant, tainted and mercenary state Legislature.

MAR. 22, 2012