It should be noted that, logically, requiring that colleges disclose their conduct policies weakens the case that the policies themselves must be forbidden. With clear disclosure, students who attend these colleges have made an informed choice.
What can religious colleges do if the bill becomes law?
Some might use the First Amendment. Colleges could raise challenges based on their rights to exercise religion and to associate in order to express their beliefs. Among other things, religious institutions have protections for their “internal governance” decisions, including choosing leaders and setting membership standards. In its 2012 Hosanna-Tabor decision, the Supreme Court unanimously reaffirmed these rights even in the face of a non-discrimination law. That principle may protect some college policies concerning faculty, although it’s unclear whether and how far it would protect policies concerning students.
The state will likely raise several counterarguments. Under the Free Exercise Clause, the government usually can require that religious groups follow “religion-neutral, generally applicable” laws. This bill targets religious colleges in that it shrinks the exemption specifically provided to them; but the result, the state will say, is that religious colleges are subject to the same non-discrimination rules as other colleges receiving state aid. In about 30 states, religious actors can challenge even generally applicable laws by using religious freedom statutes (modeled on the federal Religious Freedom Restoration Act) or state constitutional rulings. But California has no such statute, and its state constitutional rule is very uncertain. The state will also argue that the bill involves affirmative state funding, and courts are often reluctant to put constitutional limits on government’s ability to decide how to spend its money.
The colleges respond that in its current form, the bill targets religious organizations. Among other things, if the bill forbids colleges to engage in discrimination based on religious belief, they will be the only belief-based organizations barred from demanding that their employees commit to that underlying belief (an institution based on a secular ideal would not face the bar). And the requirement to disclose a Title IX exemption, while perhaps less burdensome, applies only to religious colleges, even though other entities have Title IX exemptions. These objections require more exploration; some might be cured by changing the bill’s language. Whatever the ultimate result, lawsuits over the law could be long and costly.
And if the bill survives a lawsuit?
The affected colleges could respond in several ways, although all are unattractive from their standpoint. Schools could try to avoid conflicts where possible; for example, a college that provides married-student housing could stop offering it. But that solution will not always be possible.
Some colleges might decide they have no choice but to stop participating in the Cal Grants program. That, of course, would cause a substantial hit to student finances; it might lead to tuition increases, and a regrettable decline in economic and ethnic diversity among students, unless other sources of money replace the grants. If donors value colleges’ loyalty to the male-female view of marriage or to other conservative sexual ethics, they may need to shoulder an additional share of the burden of defraying students’ educational costs.