BRENNON B., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT et al., Real Parties in Interest.
A157026 (Contra Costa County Super. Ct. No. MSC1601005)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 11/13/20
CERTIFIED FOR PUBLICATION
We are asked to decide two issues: (1) whether a public school district is a business establishment for purposes of the Unruh Civil Rights Act (
Our Supreme Court has examined the meaning of the term “business establishment” as used in the Unruh Act in a number of cases. However, the defendant in each was a private entity. Thus, the court has had no occasion to consider whether a government entity, and specifically an agent of the state performing a state constitutional obligation, such as a public school district, is a business establishment within the meaning of the Act.1
We have therefore followed the analytical template our high court has employed in deciding whether a private entity is a business establishment for purposes of the Act, examining the historical genesis of the Act and the Act‘s limited legislative history, and canvassing the court‘s decisions and considering the scholarly articles to which the court has regularly cited, as well as other pertinent authorities. This multi-pronged inquiry leads us to conclude public school districts are not business establishments under the Unruh Act.
We further conclude the Unruh Act imposes liability only on business establishments and therefore reject petitioner‘s alternative assertion that, even if a public school district is not a business establishment, it may nevertheless be held liable under the Act where, as here, the alleged discriminatory conduct is actionable under the ADA. Reading the language
In reaching these conclusions, we are by no means suggesting our public school districts are not subject to stringent antidiscrimination laws. They are. These include the panoply of antidiscrimination statutes set forth in the Education Code and applicable to all schools receiving any form of state funding or assistance (
We thus conclude the trial court did not err in sustaining the school district‘s demurrer to petitioner‘s cause of action under the Unruh Act without leave to amend, and therefore deny his petition for a writ of mandate (
DISCUSSION2
Historical Background of the Unruh Act
“The general policy embodied in [Civil Code] section 51 can be traced to the early common law doctrine that required a few, particularly vital, public enterprises—such as privately owned toll bridges, ferryboats, and inns—to serve all members of the public without arbitrary discrimination. (See generally, Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250 [(Tobriner & Grodin)].) After the United States Supreme Court, in the Civil Rights Cases (1883) 109 U.S. 3 . . ., invalidated the first federal public accommodation statute, California joined a number of other states in enacting its own initial public accommodation statute, the statutory predecessor of the current version of [Civil Code] section 51. (Stats. 1897, ch. 108, § 2, p. 137.)” (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 607-608 (Warfield).)
Given the
The court first concluded the statute could not be sustained under the Fourteenth Amendment because the statutory prohibition was divorced from state action and was directed at conduct by private persons. (Civil Rights Cases, supra, 109 U.S. at pp. 10-20.) “It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment.” (Id. at p. 11.) The court next considered whether the statute could be sustained under the Thirteenth Amendment as “necessary and proper” to enforce the constitutional prohibition of slavery. (Id. at pp. 20-24.) The court concluded “the act of a mere individual, the owner of the inn, the public conveyance or place of amusement, refusing the accommodation” could not “be justly regarded as imposing any badge of slavery or servitude upon the applicant.” Rather, said the court, it was an act “inflicting an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws.” (Id. at p. 24.)
As our Supreme Court has since observed, many states, including California, enacted the state laws necessary to replace the invalidated federal statute that had endeavored to prohibit discriminatory conduct by private persons in the operation and provision of public accommodations, conveyances and places of amusement. (E.g., Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, 686 (Curran); Warfield, supra, 10 Cal.4th at p. 607.) Thus, the nomenclature “public accommodation” statutes. (See Curran, at pp. 686-687; Warfield, at pp. 607-608; see generally Horowitz, The 1959 California Equal Rights in “Business Establishments” Statute—A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 263 (Horowitz)3
” ‘Expanding upon the limited category of “public service enterprises” to which the early common law doctrine applied,’ ”4 California‘s ” 1897 statute, as amended in 1919 and 1923, provided that ‘[a]ll citizens within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of inns, restaurants, hotels, eating houses, places where ice cream or soft drinks of any kind are sold for consumption on the premises, barber shops, bath houses, theaters, skating rinks, public conveyances and all other places of public accommodation or amusement, subject only to the conditions and limitations established by law, and applicable alike to all citizens.’ (Stats.1923, ch. 235, § 1, p. 485.)’ ”5 (Curran, supra, 17 Cal.4th at pp. 686-687, quoting Warfield, supra, 10 Cal.4th at pp. 607-608; see generally Horowitz, supra, 33 So.Cal.L.Rev. at p. 261 [prior to 1959, there were “a few areas in which California law prohibited racial discrimination by private persons: e.g., the Legislature had, in 1893 and 1897, enacted what eventually became Civil Code Sections 51-54, prohibiting such discrimination by operators of places of ‘public accommodation,’ ‘amusement,’ and ‘entertainment,’ ” fn. & italics omitted].)
Thus, nothing in the historical context from which the Unruh Act emerged suggests the state‘s earlier public accommodation statutes were enacted to reach “state action.” And there is much authority to the contrary that these statutes were enacted to secure within our state law the prohibition against discrimination by privately owned services and enterprises the United States Supreme Court referenced in the Civil Rights Cases and which the common law had already begun to recognize through the public service doctrine. (See Curran, supra, 17 Cal.4th at pp. 686-687; Warfield, supra, 10 Cal.4th at pp. 607-608; see also Horowitz, supra, 33 So.Cal.L.Rev. at p. 281 [” [i]t was clear that in [former] [Civil Code] Sections 51 and 52 the
Enactment of the Unruh Act
” ‘In 1959, in apparent response to a number of appellate court decisions that had concluded that the then-existing public accommodation statute did not apply to the refusal of a private cemetery, a dentist‘s office, and a private school to make their facilities available to African-American patrons (see Long v. Mountain View Cemetery Assn. (1955) 130 Cal.App.2d 328. . . ; Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833 . . . ; Reed v. Hollywood Professional School (1959) 169 Cal.App.2d Supp. 887. . . [(Reed)]), the Legislature undertook, through enactment of the Unruh Civil Rights Act, to revise and expand the scope of the then-existing version of [Civil Code] section 51.’ ” (Curran, supra, 17 Cal.4th at p. 687, quoting Warfield, supra, 10 Cal.4th at p. 608.)
Given the issues before us, we again pause briefly to more fully describe Reed. In that case, a private school refused to admit a five-year-old prospective student because of her race, and she sued for damages under the state‘s public accommodation law. After suffering a nonsuit, she appealed to the superior court appellate division. (Reed, supra, 169 Cal.App.2d Supp. at p. 888.) The court concluded, on comparing the enterprises enumerated in the statute, that the private school was “not a place of public accommodation or amusement” within the meaning of the statute. (Id. at p. 890; Id. at p. 889 [“The settled rule of law is that the expression ‘all other places’ means all other places of a like nature to those enumerated.“].)
The court also contrasted the private school with the state public school system, pointing out the latter secured the educational rights of all students, including the plaintiff (Reed, supra, 169 Cal.App.2d Supp at pp. 888-889) and that “racial discrimination in public education is unconstitutional.” (Id. at p. 890, citing Brown v. Board of Education of Topeka (1954) 347 U.S. 483 (Brown).) The court additionally rejected the plaintiff‘s invitation to conclude, solely on the basis of “public policy,” that the public accommodation statute applied “to a matter of private relationship such as that here before us, since the defendant school has no monopoly and since the Legislature has specifically declared the public policy of the state in regard to discrimination in particular locations and it is the office of the
As initially introduced, the legislation ” ‘proposed to revise the first paragraph of [the then existing] [Civil Code] section 51 to provide: “All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin, are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, schools, and public facilities; to purchase real property; and to obtain the services of any professional person, group or association.” [Citation.] Thereafter, the bill underwent a series of amendments in both houses of the Legislature.’ ” (Curran, supra, 17 Cal.4th at p. 687, italics omitted, quoting Warfield, supra, 10 Cal.4th at p. 608.)
These amendments, chronicled by Professor Horowitz, are of significant interest, given the issues before us. (See Curran, supra, 17 Cal.4th at p. 687, fn. 13, quoting Warfield, supra, 10 Cal.4th at p. 608, fn. 8 [” ‘The complete progression of the bill through the Legislature is set forth in detail in Horowitz[, supra,] 33 So.Cal.L.Rev. [at pp.] 265-270.’ “].)
” ‘All citizens within the jurisdiction of this State, no matter what their race, color, religion, ancestry, or national origin, are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, and privileges in, or accorded by, all public or private groups, organizations, associations, business establishments, schools, and public facilities, except those institutions organized primarily for the purpose of, and which practice, the furthering of a specific sectarian religious belief or a specific national culture, and which limit their membership or affiliations to only those persons with a corresponding religious belief or national derivation; to purchase real property; and to obtain the services of any professional person, group or association.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at p. 266 & fn. 32.)
A week later, on March 30, the legislation was again amended to read (new language italicized and some also bolded for emphasis):
” ’ . . . All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out, but not limited, by this section:
‘(a) To all business establishments of every kind whatsoever;
’(b) To all schools of every kind whatsoever, except those schools organized for the purpose of, and which practice, the furthering of a specific sectarian religious belief;
‘(c) To the benefits administered or offered by any organization or institution receiving any tax advantage or exemption, or receiving any form of assistance from the Federal Government, or the State of California, or any municipality or any political subdivision of either;
‘(d) To membership in any and all business or professional organizations formed or maintained primarily for the protection or advancement of the business or professional interests of the members;
‘(e) To obtain the services of any professional person, group or association licensed or certified by the State of California, any municipality or political subdivision or agency of either.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at pp. 266-267 & fn. 33.)
” ’ . . . All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out, but not limited, by this section:
‘(a) To all business establishments of every kind whatsoever;
’(b) To all schools of every kind whatsoever, except those schools organized for the purpose of, and which practice, the furthering of a specific sectarian religious belief, insofar as the facilities of any such school so organized and following such practice are made available primarily to persons who subscribe to such belief[;]
‘(c) To the charitable benefits administered or offered by any organization or institution receiving any tax advantage or exemption, or receiving any form of assistance from the Federal Government, or the State of California, or any municipality or any political subdivision of either;
‘(d) To membership in any and all business or professional organizations formed or maintained primarily for the protection or advancement of the business or professional interests of the members;
‘(e) To obtain the services of any professional person, group or association licensed or certified by the State of California, any municipality or political subdivision or agency of either.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at pp. 267-268 & fn. 34.)
Two weeks later, on May 12, the legislation was amended yet again (new language italicized and some bolded for emphasis):
” ’ . . . All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out, . . . by this section:
‘(a) To all business establishments of every kind whatsoever;
’(b) To all schools which primarily offer business or vocational training . . . ;
‘(c) To the charitable benefits administered or offered by any organization or institution receiving any direct subvention . . . from the Federal Government, or the State of California, or any municipality or any political subdivision of either;
‘(d) . . . In any and all business or professional organizations formed or maintained by licensees of the State of California primarily for the protection or advancement of the business or professional interests of the members;
‘(e) . . . From any professional person, group or association licensed or certified by the State of California, any municipality or political subdivision or agency of either.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at p. 268 & fn. 35.)
A month later, on June 11, the legislation was amended by way of significant deletions (bold added for emphasis):
” ’ . . . All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal admittance, accommodations, advantages, facilities, membership, privileges, services or benefits set out by this section:
‘(a) To all business establishments of every kind whatsoever;
’(b) To all schools which primarily offer business or vocational training[.]’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at p. 269 & fn. 36.)
Four days later, on June 15, the bill was amended one last time to read as enacted (new language italicized):
” ’This section shall be known, and may be cited, as the Unruh Civil Rights Act.
’ . . . All citizens within the jurisdiction of this State are free and equal, and no matter what their race, color, religion, ancestry, or national origin are entitled to the full and equal . . . accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at pp. 269-270 & fn. 37.)
Petitioner urges us to conclude that a public school district is a business establishment under the Unruh Act because prior versions of the legislation referred to “schools.” However, in Warfield, our Supreme Court expressly rejected such a construction of the Act, as we discuss in more detail infra. (Warfield, supra, 10 Cal.4th at pp. 614-615.)
Nor can we overlook that the state‘s public accommodation laws, the immediate predecessors of the Unruh Act, were enacted in response to the Civil Rights Cases—that is, they were enacted to prohibit discriminatory conduct by individual proprietors and private entities offering goods and services to the general public. Federal antidiscrimination legislation could reach state action, but it could not, according to the United States Supreme Court, reach discriminatory conduct by private persons or entities. (See Horowitz, supra, 33 So.Cal.L.Rev. at p. 260 [“Broadly speaking, the delineation of governmental policy with respect to racial discrimination by a private person (as distinguished from discrimination by a governmental entity, such as a state) in his relationships with other private persons is left, in the federal system, to the states.“].)
Indeed, by the time the Unruh Act was enacted, the United States Supreme Court had already held racial discrimination in the public schools unconstitutional and repudiated the pernicious notion that segregated schools provided a separate but equal education. (Brown, supra, 347 U.S. at p. 495.) Thus, while there was a pressing need for state legislation to prohibit discrimination by private schools, and particularly vocational and technical schools that offered a path to employment, charged tuition, and offered their
We also observe that the only specific references to government entities in any version of the legislation served to describe other enumerated private entities and organizations that would be required by the law to provide ” ‘full and equal admittance, accommodations, advantages, facilities, membership, privileges, services or benefits’ ” to the state‘s citizens. (Horowitz, supra, 33 So.Cal.L.Rev. at pp. 266-267, fn. 33, italics omitted.) The first such reference was in connection with ” ‘the benefits administered or offered by any organization or institution’ ” that claimed any tax advantage or received any form of assistance provided by ” ‘the Federal Government, or the State of California, or any municipality or any political subdivision of either.’ ” (Id. at p. 267 & fn. 33, italics omitted.) The second was to ” ‘the services of any professional person, group or association licensed or certified by the State of California, any municipality or political subdivision or agency of either.’ ” (Ibid., italics omitted.) In short, the pending legislation, at certain points, described individuals and nongovernment entities availing themselves of federal or state tax advantages or economic assistance, or the benefits conferred by state or local licensing laws.
Thus, there is nothing in the legislative history of the Unruh Act, itself, that suggests the Act was intended to reach discriminatory conduct by state agents, such as public school districts, and, again, there is much to indicate otherwise. (See Horowitz, supra, 33 So.Cal.L.Rev. at p. 262 [enactment of the new “[Civil Code] [s]ections 51 and 52, referring to ‘business establishments,’ result[ed] in California now expressing its policy against racial and other discrimination in this general area of relationships between private persons in a way which is unique among the states—i.e., without the use of the word ‘public,’ and with the use of the words ‘business’ and ‘establishments’ “].)
Supreme Court Precedent
Our Supreme Court has grappled with the meaning of the term “business establishment” as used in the Unruh Act in a number of cases. One of the earliest was Burks, supra, 57 Cal.2d 463. “In Burks, the plaintiffs claimed that the defendants, a company and one of its employees who were engaged in developing, building, and selling a tract of houses, were
In addition to concluding the construction company was a business establishment under the Unruh Act, the court in Burks also rejected the company‘s due process challenge to the statute, stating: “Discrimination on the basis of race or color is contrary to the public policy of the United States and of this state. Although the antidiscrimination provisions of the federal Constitution relate to state rather than private action, they nevertheless evidence a definite national policy against discrimination. [Citation.] The Legislature in the exercise of the police power may in appropriate circumstances prohibit private persons or organizations from violating this policy. . . . [¶] For more than 50 years prior to the enactment of the Unruh Act, sections 51 and 52 of the Civil Code contained provisions prohibiting discrimination in places of ‘public accommodation and amusement.’ The constitutionality of this legislation was upheld in Piluso v. Spencer (1918), 36 Cal.App. 416, 419 . . ., and there is no valid reason why the extension of the prohibition against discrimination to ‘all business establishments,’ including those dealing with housing, would be violative of due process. Discrimination in housing leads to lack of adequate housing for minority groups [citation], and inadequate housing conditions contribute to disease, crime, and immorality. Under the police power reasonable restrictions may be placed upon the conduct of any business and the use of any property [citations], and the restriction here imposed in furtherance of the policy against discrimination is reasonable.” (Burks, supra, 57 Cal.2d at p. 471.)
In Isbister, the court considered whether a local Boys’ Club, a private charitable organization, was, in operating a “community recreational facility,” a business establishment under the Unruh Act. (Isbister, supra, 40 Cal.3d at p. 76.) The court concluded it was. (Ibid.)
The court commenced its opinion by stating: “The Act is this state‘s bulwark against arbitrary discrimination in places of public accommodation. Absent the principle it codifies, thousands of facilities in private ownership, but otherwise open to the public, would be free under state law to exclude people for invidious reasons like sex, religion, age, and even race. The Legislature‘s desire to banish such practices from California‘s community life has led this court to interpret the Act‘s coverage ‘in the broadest sense reasonably possible.’ ” (Isbister, supra, 40 Cal.3d at pp. 75-76, quoting Burks, supra, 57 Cal.2d at p. 468.)
The court thus concluded “[t]he club certainly qualifies as a ‘place of amusement.’ Indeed, its primary function is to operate a permanent physical plant offering established recreational facilities which patrons may use at their convenience during the hours the Club is open.” (Isbister, supra, 40 Cal.3d at p. 81.) Moreover, “the emphasis is on drop-in use of the Club‘s facilities, thus minimizing any sense of social cohesiveness, shared identity, or continuity. Boys who join the Club have no power in its affairs and no control over who else may be members. A fee, though not a large one, is charged for the annually renewable membership. Thus, the Club provides an atmosphere deemed characteristic of a ‘public accommodation’ by the principal commentator on the Unruh Act; relations with and among its members
The court rejected the club‘s claim that because it collected only a small annual membership fee from patrons and had “no economic function,” it was too “removed from the commercial world” to be subject to the
In Warfield, the court considered whether a members-only golf and country club was a business establishment under the
The court first rejected, however, the plaintiff‘s assertion the court‘s earlier cases had “establish[ed] that the Legislature‘s adoption of the phrase ‘all business establishments of every kind whatsoever’ in the final, enacted version of the
The court next addressed whether “private social clubs, as a general matter, constitute ‘business establishments’ within the meaning of
But this did not mean, the court went on to explain, that an entity or organization is exempt from the
To begin with, “the club regularly (on the average of once a week) permit[ted] nonmembers to use its facilities, for a fee, in connection with
The court concluded that “because of the involvement of defendant‘s operations in the variety of regular business transactions with nonmembers discussed above, the club must properly be considered a business establishment within the meaning of
This brings us to Curran and its companion case Randall, which considered whether the Boy Scouts organization, in making membership decisions, is a business establishment under the
“Nonetheless,” said the court, “although past California decisions demonstrate that the
The court also recognized that in Isbister, it “concluded that in light of the legislative history demonstrating that the
The court disagreed, however, “that the circumstance that the Boy Scouts is generally nonselective in its admission policies, and affords membership to a large segment of the public, is itself sufficient to demonstrate that the organization reasonably can be characterized as the functional equivalent of a traditional place of public accommodation or amusement.” (Curran, supra, 17 Cal.4th at p. 697.) Rather, the “record establishe[d] that the Boy Scouts is an organization whose primary function is the inculcation of a specific set of values in its youth members, and whose recreational facilities and activities are complementary to the organization‘s primary purpose. Unlike membership in the Boys’ Club of Santa Cruz, Inc., membership in the Boy Scouts is not simply a ticket of admission to a recreational facility that is open to a large segment of the public and has all the attributes of a place of public amusement.” (Id. at pp. 697-698.)
While the “Boy Scouts, like the country club in Warfield, engages in business transactions with nonmembers on a regular basis (through the operation of retail shops and the licensing of the use of its insignia), the Boy Scouts’ business activities differ from those of the defendant in Warfield in a very significant respect. . . . [T]he Boy Scouts is an expressive social organization whose primary function is the inculcation of values in its youth members, and whose small social group structure and activities are not comparable to those of a traditional place of public accommodation or amusement. Unlike those involved in Warfield, the business transactions with nonmembers engaged in by the Boy Scouts do not involve the sale of access to the basic activities or services offered by the organization.” (Curran, supra, 17 Cal.4th at pp. 699-700.) The Boy Scout‘s “business transactions are distinct from” its “core functions and do not demonstrate that the organization has become a commercial purveyor of the primary incidents and benefits of membership in the organization.” (Id. at p. 700.)
In Randall, the court reached the same conclusion it had in Curran, stating: “[W]e conclude that defendant‘s attributes and activities render the
What do we discern from these cases that is of particular significance to the issues before us?
Nothing in the high court‘s decisions suggests otherwise, and, in fact, the court‘s commentary about the
The scholarly works to which the court has repeatedly cited, express this same understanding—that the progenitor common law public interest doctrine and our post-Civil Rights Cases public accommodation statutes, including the
Secondly, many of the high court‘s reasons for why it determined private entities were business establishments under the
We thus conclude the decisions of our Supreme Court confirm what seems apparent from the historical origins of the
Other Court Decisions Interpreting the Unruh Act
Our conclusion is consistent with decisions by other Courts of Appeal that have considered whether a government entity was a business establishment under the
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 establishments under the
Finally, we must comment on the federal court cases that have considered whether California public school districts are business establishments under the
In Zuccaro v. Martinez Unified School District (N.D. Cal. Sept. 27, 2016, No. 16-cv-02709-EDL) 2016 WL 10807692 (Zucarro), the district court concluded, after a discussion of Isbister and Curran, as well as the California Court of Appeal decisions we have discussed, that “a public elementary school, particularly in its capacity of providing a free education to a special needs preschooler, is similarly acting as a public servant rather than a commercial enterprise and is therefore not subject to the
Zuccaro acknowledged its conclusion was contrary to that of other district courts—a line of cases on which petitioner here relies. Zuccaro pointed out these cases have all been predicated on Isbister‘s reminder that the
We agree with Zucarro‘s assessment of the line of district court cases concluding a California public school district is a business establishment under the
In fact, many of these cases have simply cited to the first district court case to conclude a California public school district was a business establishment, Sullivan v. Vallejo City Unified School Dist. (E.D. Cal. 1990) 731 F.Supp. 947 (Sullivan). Sullivan‘s reasoning was as follows: “The California Supreme Court has taught that the ‘Legislature‘s desire to banish [discrimination] from California‘s community life has led [that] court to interpret the
In Whooley v. Tamalpais Union High School Dist. (N.D. Cal. 2019) 399 F.Supp.3d 986 (Whooley), the district court nevertheless took issue with Zuccarro and endorsed Sullivan‘s approach. The court first distinguished Curran and California Lutheran. Unlike the Boy Scouts and the private, religious high school, said the district court, the high school district “is a public operation that provides educational services to the local community at no cost to the individuals its serves.” (Id. at p. 998.) The court next pronounced as inapposite the California appellate court cases concluding other government entities were not business establishments—none, said the district court, “dealt with public schools with their ‘quintessential character of providing public accommodations and services to students.’ ” (Ibid., citing Yates v. East Side Union High School Dist. (N.D.Cal. Feb. 20, 2019, No. 18-cv-02966-JD) 2019 WL 721313 at *2.) In short, Whooley (as does Yates) suffers from the same analytical shortcomings as Sullivan. As we have discussed at length, the historical genesis of the
Education Code Sections 200 et seq.
Casting beyond the
As originally enacted in 1982,
In 1998, these statutory provisions were amended and augmented to consolidate and standardize antidiscrimination provisions previously scattered throughout the
As the Assembly Judiciary Committee explained, “This bill would consolidate and standardize the non-discrimination language in the
In one of the last, if not the last, round of amendments, language referencing the
“(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent with
Section 11135 of the Government Code ,Titles VI andIX of the federal Civil Rights Act ,Section 504 of the federal Rehabilitation Act of 1973 , thefederal Americans with Disabilities Act , and thefederal Equal Education Opportunities Act , except where this chapter may grant more protections or impose additional obligations, and that the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes.” (Assem. Bill No. 499 (1997-1998 Reg. Sess.) as amended Jan. 27, 1998, p. 6.)
As amended the subdivision provided, as it does today:
“(g) It is the intent of the Legislature that this chapter shall be interpreted as consistent with
Article 9.5 (commencing with Section 11135) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code ,Title VI of the federal Civil Rights Act of 1964 (42 U.S.C. Sec. 1981, et seq.) ,Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681, et seq.) ,Section 504 of the federal Rehabilitation Act of 1973 (29 U.S.C. Sec. 794(a)) , thefederal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.) , thefederal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq.) , theUnruh Civil Rights Act (Secs. 51 to 53, incl., Civ. C.) , and theFair Employment and Housing Act (Pt. 2.8 (commencing with Sec. 12900), Div. 3, Gov. C.) , except where this chapter may grant more protections or impose additional obligations, and that the remedies provided herein shall not be the exclusive remedies, but may be combined with remedies that may be provided by the above statutes.” (Ed. Code, § 201, subd. (g) .)
Committee reports and bill analyses continued to describe the legislation as before. (E.g., Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading of Assem. Bill No. 499 (1997-1998 Reg. Sess.) as amended July 22, 1998, pp. 1-2; Conc. in Senate Amendments Assem. Bill No. 499 (1997-1998 Reg. Sess.) as amended July 22, 1998, p. 2.)
The author‘s transmittal letter asking for the Governor‘s signature, similarly, emphasized the following: “[T]he bill consolidates and standardizes the non-discrimination language in the
Accordingly, the 1998 amendments to
anti-discrimination statutes are to be applied “as consistent with” a number of anti-discrimination laws, including the
We also note the
We further observe that in crafting the comprehensive anti-discrimination provisions set forth in
We therefore conclude, for all the reasons we have discussed, that
Civil Code Section 51, Subdivision (f) of the Unruh Act
Petitioner alternatively maintains that even if a public school district is not a business establishment under the
Before discussing the statutory language at issue, we turn momentarily to the
Returning to the
For virtually the entire time the bill was moving through the legislature, the pertinent language stated: “A violation of the right of any individual under the Americans With Disabilities Act of 1990 (Public Law 101-336) with respect to public accommodations subject thereto shall also constitute a violation of this section.” (Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended Apr. 18, 1991, § 2, pp. 8-9.) The
The proposed language continued unchanged from its initial inclusion in the bill in April 1991 until the next to final round of amendments on July 6, 1992. (Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended Apr. 18, 1991, § 2; Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended July 6, 1992, § 3.) At this time, the language was shortened to read as it currently does: “A violation of the right of any individual under the Americans with Disability Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” (Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended July 6, 1992, § 3.) The language remained situated as the final paragraph of the multi-paragraphed statute. (Ibid.)12 The description of the language in committee reports and bill analyses also remained exactly as before. (E.g.,
Conc. in Sen. Amends., Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended Aug. 29, 1992, p. 1; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended Aug. 29, 1992, p. 2; State and Consumer Services Agency, Enrolled Bill Report on Assem. Bill No. 1077 (1991-1992 Reg. Sess.) at p. 2.) A supplemental analysis prepared by the Transportation Committee stated the July 6 amendment made “numerous, mostly technical changes.” (Business, Transportation & Housing Agency, Supp. Analysis on Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended July 6, 1992, p. 1.)
In short, not a single committee report or bill analysis prepared after the final amendment shortening the proposed language, suggested this final amendment profoundly changed the substantive reach of the
We thus see no indication the Legislature intended, as to disability discrimination only, to transform the
Even as shortened in the final round of technical amendments, the language at issue does not state that a violation of the
Moreover, plaintiff‘s interpretation would effectively render superfluous amendments made by this same legislation to other anti-discrimination statutes—notably the
In addition, our Supreme Court had already held in Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 (Alcorn), that the
Our high court‘s observations and holding in Alcorn are equally apropos to the 1992 legislation that amended both the
Petitioner impliedly acknowledges that Alcorn‘s holding—that the
Our conclusion that
In Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661 (Munson), the court addressed a question certified to it by the Ninth Circuit—whether an access claim by a wheelchair bound patron against
The high court first reiterated the “purpose” of the
It then explained that in 1992, the Legislature amended the Act “to, among other changes, add the paragraph that became [
The court went on to explain, “[t]he ADA‘s public accommodations provisions are contained in
The court concluded a plaintiff proceeding under
The Supreme Court‘s discussion in Munson of
In Jankey v. Lee (2012) 55 Cal.4th 1038 (Jankey), our high court considered whether a small grocer who prevailed in a disability access case was entitled to statutory attorney fees under the state‘s
The
Thus, Jankey, like Munson, was a business establishment case. And the court in Jankey, as it had in Munson, described the
In urging otherwise, petitioner relies on a line of federal cases that have allowed disability discrimination claims against government entities under
None of these cases examined the legislative history of the language of
Indeed, in marked contrast to the line of cases on which petitioner relies, the circuit court panel in Bass v. County of Butte (9th Cir. 2006) 458 F.3d 978 (Bass), undertook a thorough examination of each of the areas of inquiry as to which the analyses in the other cases are profoundly deficient. Acknowledging Alcorn and Rojo, the Bass court concluded employment claims asserted under
With respect to the plaintiff‘s reliance on the language added to these statutes in 1992 and 1996, respectively, the court stated plaintiff‘s construction was “incompatible with the state‘s statutory scheme as a whole and is unsupported by the legislative history of the amendments.” (Bass, supra, 458 F.3d at p. 981.) The plaintiff‘s assertion that the “plain meaning” of the amendments required “incorporation of the ADA in its entirety into the
The Bass court went on to point out the legislation adding the reference to the
Citing Bass, the district court in Anderson, supra, 2010 WL 3619821, in addition to concluding the county was not a business establishment under the
For all the reasons we have discussed, Bass and Anderson, in our view, have correctly analyzed
DISPOSITION
The petition for a writ of mandate seeking to overturn the trial court‘s order sustaining the school district‘s demurrer to his
Banke, J.
We concur:
Margulies, Acting P.J.
Sanchez, J.
A157026, Brennon B.
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Charles S. Treat
Counsel:
Liberty Law Office and Micha Star Liberty for Petitioner.
Consumer Attorneys of California and Alan Charles Dell‘Ario as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Edington Schirmer & Murphy, Timothy Patrick Murphy and Cody Lee Saal for Real Party in Interest.
Sue Ann Salmon, Dannis Woliver Kelley, and David A. Obrand; The Education Legal Alliance of the California School Boards Association and Kathryn Elizabeth Meola, as Amicus Curiae on behalf of Real Party in Interest.