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Court of Appeal:
Discrimination in Public Schools Not Covered by Unruh Civil Rights Act
By SANDRA HONG, Staff Writer
A public school district is not a business establishment and accordingly, cannot be liable for an Unruh Civil Rights Act violation, Div. One of the First District Court of Appeal has held.
Justice Kathleen M. Banke wrote for the panel in denying a petition for a writ of mandate seeking to overturn an order by Contra Costa Superior Court Judge Charles S. Treat sustaining the demurrer of the West Contra Costa Unified School District without leave to amend. Acting Presiding Justice Sandra L. Margulies and Justice Gabriel P. Sanchez joined in the opinion, filed Friday.
Banke’s opinion rejected the plaintiff’s alternative argument that a school district, even if not considered a business establishment, is liable for discriminatory conduct under the Unruh Act if the alleged conduct is actionable under the federal Americans with Disabilities Act (“ADA”).
Only Business Establishments
She said of the language of the Unruh Act: “in light of its legislative history and our high court’s decisions discussing it, we conclude this language makes explicit that any violation of the ADA by a business establishment” and only a business establishment, “is also a violation of the Unruh Act.”
The Unruh Act, unlike the federal act, provides for damages.
Banke added:
“In reaching these conclusions, we are by no means suggesting out public school districts are not subject to stringent anti-discrimination laws. They are. These include the panoply of antidiscrimination statutes….”
The plaintiff, identified as “Brennon B.,” filed causes of action against the district including negligence, negligent hiring and supervision, and emotional distress, and alleged constitutional violations.
‘Business Establishment’
In a 60-page opinion, Banke traced the historical background of the Unruh Act, its legislative history, and the state’s high court precedent on what qualifies as a “business establishment” in opinions including O’Connor v. Village Green Owners Assn. in 1983, Isbister v. Boys’ Club of Santa Cruz in 1985, Warfield v. Peninsula Golf & Country Club in 1995, and Curran v. Mount Diablo Council of the Boy Scouts in 1998.
In those cases, the high court determined a nonprofit condominium association, a local Boys’ Club, and a members-only country club were considered “business establishments” under the act but that a Boy Scouts troop was not. A differentiating factor was that the Boy Scouts was an organization with a primary function to instill “a specific set of values” in its members, unlike a recreational facility or commercial enterprise.
Banke observed that the high court consistently indicated that public accommodation laws remain directed at private—and not state—conduct. The legislative history and scholarly articles regarding the act echoed the same by expressing the intent of Unruh as prohibiting discriminatory acts by private entities offering goods and services to the general public, Banke noted.
“We thus conclude the decisions of our Supreme Court confirm what seems apparent from the historical origins of the Unruh Act, its legislative history and the scholarly commentary—that California’s public school districts are not business establishments under the Act,” Banke declared.
Other C.A. Decisions
Banke said the panel’s decision was consistent with other Courts of Appeal decisions considering whether a government entity was a business establishment under the act.
“Although the analyses in these cases was more limited than ours here and generally focused on a government entity’s legislative activity, the result they reached is the same—government entities were held not to be business establishment under the Unruh Act,” she wrote.
She said that public schools “can well be described, in acting as the state’s agent in delivering constitutionally mandated, free primary and secondary education to the state’s school age children, as”— in the words of Court of Appeal Justice Victoria Chaney of this district’s Div. One, in her 2014 opinion in Carter v. City of Los Angeles—a “public servant, not [as] a commercial enterprise.”
ADA Violations
Banke added there is nothing in the legislative history of the act to support the plaintiff’s argument that one of its provisions, Civil Code §51(f), transforms any violation of the ADA into an Unruh violation.
“On the contrary, throughout the legislative process, the Unruh Act was consistently described as prohibiting discrimination by business establishments,” Banke wrote.
Section 51(f) states:
“A violation of the right of any individual under the federal Americans with Disabilities Act of 1990…shall also constitute a violation of this section.”
Banke pointed to the 2006 Ninth Circuit case of Bass v. County of Butte, which was cited by the District Court Judge Saundra Brown Armstrong of the Northern District of California in 2010 in Anderson v. County of Siskiyou. The Bass court, Banke said, examined the legislative history of §51(f) and the state Supreme Court decisions in addressing the Unruh Act’s prohibition against discrimination by business establishments.
“Bass and Anderson, in our view, have correctly analyzed Civil Code section 51, subdivision (f) – that it expressly makes any violation of the ADA by a business establishment a violation of the Unruh Act,” Banke declared.
The case is Brennon B. Superior Court, 2020 S.O.S. 5406.
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