Metropolitan News-Enterprise


Tuesday, January 27, 2009


Page 3


Court Rejects Suit Over School’s Expulsion of Alleged Lesbians


By STEVEN M. ELLIS, Staff Writer


Two students expelled from a private Lutheran high school in Riverside County over an alleged lesbian relationship cannot sue for invasion of privacy or discrimination under the Unruh Civil Rights Act, the Fourth District Court of Appeal ruled yesterday.

Concluding that the school—like the Boy Scouts of America—is not a “business enterprise” subject to the act, Div. Two upheld a judgment against the students, whose relationship was exposed by another student’s tip about postings on social networking website

The board of directors of the 142-student California Lutheran High School in Wildomar voted to expel the two girls in 2005 after Principal Gregory Bork determined they shared what he called in a letter to the girls’ parents, “a bond of intimacy…characteristic of a lesbian relationship” in violation of the school’s “Christian Conduct” rule.

Affiliated with the Evangelical Lutheran Synod and the Wisconsin Lutheran Synod, which view homosexuality as a sin, the school has a policy of refusing admission to homosexual students, and its conduct rule warned students of possible expulsion for immoral or scandalous conduct on or off campus.

The girls claimed they were subjected to an intrusive interrogation by Bork without their parents’ knowledge or consent, and they also brought claims for public disclosure of private facts, violation of their state constitutional right to privacy, and false imprisonment. They also asserted the school was a business operator subject to the Unruh Act because it collected fees and accepted students without regard to religious affiliation.

After the California Supreme Court declined to intervene upon the Court of Appeal’s denial of the school’s writ petition to scuttle the lawsuit in 2006, the case returned to Riverside Superior Court Judge Gloria Trask, who ruled the school was not a business and granted summary judgment.

On appeal, Justice Betty Ann Richli—emphasizing that the Court of Appeal’s opinion was based on statutory interpretation, not the justices’ views on the policy’s wisdom or morality—agreed, pointing to the California Supreme Court’s determination in Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670 that the Boy Scouts were not a business establishment under the Unruh Act.

Noting further that the California Attorney General opined in 1998 that, under Curran, the admission decisions of a private religious school are not subject to the act, Richli rejected the students’ claims to the extent they were based on the Unruh Act.

The justice wrote, however, that the court’s opinion did not address the school’s argument that the Unruh Act would violate its right to freedom of expressive association, as well as the right to control the education of one’s child, if construed to prohibit it from discriminating based on sex or sexual orientation.

Presiding Justice Manuel A. Ramirez and Justice Douglas P. Miller joined Richli in her opinion.

Attorneys Christopher J. Nelson, and Michael J. Grace of the San Diego firm of Grace Hollis & Hanson LLP represented the plaintiffs, while attorneys John P. McKay and Michael P. Acain of the Los Angeles firm of McKay, Graham & de Lorimier represented the defendants.

The case is Doe v. California Lutheran High School Association, E044811.


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