Brennon B. v. Super. Ct.Brennon B. v. Super. Ct.
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
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 on which petitioner predicates his assertion in context, and 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 is also a violation of the Unruh Act.
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]
Given the issues before us, it bears making more than passing reference to the Civil Rights Cases. These cases arose under a federal statute that prohibited private citizens from discriminating on the basis of race in operating or providing ” ‘accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement.’ ” (Civil Rights Cases, supra, 109 U.S. at p. 9.) Any person violating this prohibition was subject to a civil penalty enforceable in a legal action by the aggrieved person and to criminal prosecution. (Ibid.) The United States Supreme Court invalidated the statute.
The court first concluded the statute could not be sustained under the
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,
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
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]
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
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 Legislature and not of this court to make any additional enumerations which may be desirable.”6 (Reed, at pp. 891–892.)
As initially introduced, the legislation ” ‘proposed to revise the first paragraph of [the then existing] [Civil Code]
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
Two months after it was introduced, the bill was amended on March 24, 1959, as follows (new language italicized and some also bolded for emphasis):
” ‘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.)
A month later, on April 24, the bill was further amended (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, 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.)
Moreover, the prior versions of the bill reflect a progressive narrowing of the legislation‘s applicability to “schools.” Although the legislation as introduced referred to ” ‘schools,’ ” the first round of amendments excepted schools ” ‘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[ed] their membership or affiliations to only those persons with a corresponding religious belief or national derivation.’ ” (Horowitz, supra, 33 So.Cal.L.Rev. at p. 266 & fn. 32.) In the next round of amendments, the exception for schools furthering a national culture was eliminated. (Id. at pp. 266–267 & fn. 33.) And in subsequent amendments, the exception for religious schools was eliminated and only schools that ” ‘primarily offer[ed] business or vocational training’ ” were included. (Id. at p. 268 & fn. 35, italics omitted.) Thus, the category of schools to which the penultimate version of the legislation applied would not have included any public grammar schools or even public secondary schools. While the latter may offer some business or vocational training, the primary responsibility of both primary and secondary public schools is basic educational instruction. (See
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 services to the general public, there was not a correlative need with respect to state public school systems.7
We also observe that the only specific references to government entities in any version of the legislation served to describe other enumerated private
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.
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
In O‘Connor, the court considered whether a nonprofit condominium association that adopted age-restrictive covenants was a business establishment under the Unruh Act. (O‘Connor, supra, 33 Cal.3d at pp. 792, 796.) The court concluded it was, explaining: “Although our cases so far have all dealt with profit-making entities, we see no reason to insist that profit-seeking be the sine qua non for coverage under the act. Nothing in the language or history of [the Act] calls for excluding an organization from its scope simply because it is nonprofit. [Citation.] Indeed, hospitals are often nonprofit organizations, and they are clearly business establishments to the extent that they employ a vast array of persons, care for an extensive physical plant and charge substantial fees to those who use the facilities.
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
The court went on to explain why the Boys’ Club came within the bounds of the Unruh Act. The court first summarized the historical derivation of the Act, concluding that given “the Act‘s ancestry, its phrase ‘business establishments,’ clearly includes at least those facilities subject to the predecessor statute—i.e., ‘places of public accommodation or amusement.’ ” (Isbister, supra, 40 Cal.3d at p. 79.) The court then pointed out “[c]ourts in other jurisdictions ha[d] consistently held that broad-based nonprofit community service organizations like the Boys’ Club are ‘public accommodations’ covered by statutes analogous to California‘s pre-1959 civil rights law. For example, in language similar to our prior law, title II of the federal Civil Rights Act of 1964 (
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 are of a kind which take place more or less in ‘public view,’ and are of a ‘relatively nongratuitous, noncontinuous, nonpersonal, and nonsocial sort.’ ” (Ibid., quoting Horowitz, supra, 33 So.Cal.L.Rev. at pp. 260, 287, 288.)
In Warfield, the court considered whether a members-only golf and country club was a business establishment under the Unruh Act, and concluded it was. (Warfield, supra, 10 Cal.4th at pp. 598–599.)
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 Unruh Civil Rights Act was intended to incorporate all entities and activities that had been included in the initial draft of the bill introduced in 1959,” which had “referred specifically to ‘membership . . . in . . . all public or private groups, organizations [and] associations.’ ” (Warfield, supra, 10 Cal.4th at p. 614.) “[T]he cited cases” said the court, did “not support plaintiff‘s reading.” (Ibid.) “Nothing in the [Burks] opinion . . . suggest[ed] that the term ‘all business establishments of every kind whatsoever’ was
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 Unruh Act “simply because it characterizes itself as a ‘private social club.’ ” (Warfield, supra, 10 Cal.4th at p. 619.) While the parties vigorously debated whether the golf and country club was truly a “private” club beyond the reach of the Act (each relying on out of state cases reaching varying results), the court concluded it did not need to reach the issue. Rather, it “conclude[d] that the business transactions that [were] conducted regularly on the club‘s premises with persons who are not members of the club [were] sufficient in themselves to bring the club within the reach of [
To begin with, “the club regularly (on the average of once a week) permit[ed] nonmembers to use its facilities, for a fee, in connection with ‘sponsored events.’ In conducting such events, the club receive[d] funds from nonmembers for the use of the club‘s golf course, tennis courts, and dining
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 Unruh Act. (Curran, supra, 17 Cal.4th 670.) The court concluded it is not. (Id. at p. 673.)
As it had in Warfield, the court commenced with a discussion of the historical origin of the state‘s public accommodation statutes, the legislative history of the Unruh Act, and its prior opinions. (Curran, supra, 17 Cal.4th at pp. 686–696.) The court also reiterated that precedent established the term business establishment must be “interpreted ‘in the broadest sense reasonably possible.’ ” (Curran, supra, 17 Cal.4th at p. 696, quoting Burks, supra, 57 Cal.2d at p. 468.)
“Nonetheless,” said the court, “although past California decisions demonstrate that the Act clearly applies to any type of for-profit commercial enterprise, and to nonprofit entities—like the condominium association in O‘Connor—whose purpose is to serve the business or economic interests of its owners or members, no prior decision ha[d] interpreted the ‘business establishments’ language of the Act so expansively as to include the membership decisions of a charitable, expressive, and social organization,
The court also recognized that in Isbister, it “concluded that in light of the legislative history demonstrating that the Unruh Civil Rights Act was intended to extend the reach of California‘s prior public accommodation statute, the very broad ‘business establishments’ language of the Act reasonably must be interpreted to apply to the membership policies of an entity—even a charitable organization that lacks a significant business-related purpose—if the entity‘s attributes and activities demonstrate that it is the functional equivalent of a classic ‘place of public accommodation or amusement.’ ” (Curran, supra, 17 Cal.4th at p. 697, quoting Isbister, supra, 40 Cal.3d at p. 83, italics omitted.)
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
In Randall, the court reached the same conclusion it had in Curran, stating: “[W]e conclude that defendant‘s attributes and activities render the Unruh Civil Rights Act inapplicable to its membership decisions. Defendant not only is a charitable organization with a predominantly expressive social purpose unrelated to the promotion of the economic interests of its members, but offers to its members a program that is not the equivalent of a traditional place of public accommodation or amusement. Despite the organization‘s limited business transactions with the public, defendant does not sell the right to participate in the activities it offers to its members. For these reasons, with regard to its membership decisions, defendant is not operating as a business establishment within the purview of California‘s public accommodation statute.” (Randall, supra, 17 Cal.4th at p. 744.)
What do we discern from these cases that is of particular significance to the issues before us?
First, while our high court has never considered whether a state entity fulfilling a state constitutional mandate is a business establishment for purposes of the Unruh Act, the court has, in deciding whether private entities are such, considered both the historical genesis of our public accommodation laws and the legislative history of the Act. As we have discussed, these areas of inquiry indicate our public accommodation laws, including in its most recent form, have been, and remain, directed at private, rather than state, conduct.
Nothing in the high court‘s decisions suggests otherwise, and, in fact, the court‘s commentary about the Unruh Act echoes what seems apparent from its history. In Burks, after concluding the private construction company
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 Unruh Act, are the means by which the courts and the state, respectively, have sought to reach and prohibit discriminatory conduct by private persons and entities that offer goods and services to the general
Secondly, many of the high court‘s reasons for why it determined private entities were business establishments under the Unruh Act do not pertain to our public school districts. The “overall function” of a public school district is not to “enhance” its “economic value.” (O‘Connor, supra, 33 Cal.3d at p. 796.) While a public school district may provide some athletic facilities for the physical education of its students, these facilities are not the district‘s “principal activity and reason for existence.” (Isbister, supra, 40 Cal.3d at p. 76.) Nor do public school districts provide a “physical plant” for “patrons [to] use at their convenience” and for which they pay an annual membership fee. (Id. at p. 81.) “Commercial transactions” with the general public are not “an integral part of [a public school district‘s] overall operations.” (Warfield, supra, 10 Cal.4th at p. 622.) The “attributes and activities” of a public school district are not “the functional equivalent of a classic ‘place of public accommodation or amusement.” (Curran, supra, 17 Cal.4th at p. 697.) And whatever commercial activities a public school district may engage in (such as allowing school clubs or booster organizations to sell goods to raise funds for extracurricular student activities, or allowing school athletic departments to charge a small admission fee for student athletic events), “do not involve the sale of access to the basic” education that public school districts are
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.
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 Unruh Act and concluded they were not. (Harrison v. City of Rancho Mirage (2015) 243 Cal.App.4th 162, 175 [city not a business establishment in amending municipal code to increase age of person “responsible” for short-term rental]; Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 764 [city “not functioning as a ‘business establishment’ ” in enacting legislation regulating medical marijuana]; Burnett v. San Francisco Police Department (1995) 36 Cal.App.4th 1177, 1191–1192 [city ordinance restricting young adults from after-hours clubs not actionable under Unruh Act; nothing in Act “precludes legislative bodies from enacting ordinances that make age distinctions among adults“]; see Carter v. City of Los Angeles (2014) 224 Cal.App.4th 808, 825–826 (Carter) [although appellate court reversed approval of class action settlement, it agreed recovery of damages under Unruh Act was “unlikely,” as a “public entity
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 Unruh Act. Furthermore, public school districts 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 a “public servant, not [as] a commercial enterprise.”9 (Carter, supra, 224 Cal.App.4th at p. 825.)
We must also comment on Doe v. California Lutheran High School Assn. (2009) 170 Cal.App.4th 828 (California Lutheran), in which the Court of Appeal concluded a private, religiously affiliated secondary school was not a business establishment under the Act. Contrasting Warfield and Curran, the court concluded the school shared many of the same attributes of the Boy Scouts, in that the student body was limited to those sharing the Lutheran faith and a significant aspect of the school‘s educational mission was furthering the religious tenants of the church. (Id. at pp. 838, 840–841.) The court concluded by emphasizing the narrow scope of its holding. (Id. at p. 841) Indeed, as we have observed, a secular private school, charging tuition and generally open to school-age children, is likely a business establishment for purposes of the Act. (See Horowitz, supra, 33 So.Cal.L.Rev. at pp. 285–286.)
Finally, we must comment on the federal court cases that have considered whether California public school districts are business
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 Unruh Act.” (Id. at *9–13.)
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 Unruh Act applies to ” ‘all business establishments of every kind whatsoever’ ” and therefore must be interpreted in ” ‘the broadest sense reasonably possible’ ” (Isbister, supra, 40 Cal.3d at pp. 75–76), and its holding that a nonprofit entity can be a business establishment within the meaning of the Act. (Zucarro, supra, 2016 WL 10807692 at *10–12.) Zuccaro concluded these features of Isbister, in isolation, were not dispositive, given the analysis in Curran. (Id. at *10–13; see Anderson v. County of Siskiyou (N.D. Cal. Sept. 10, 2010, No. C10-01428) 2010 WL 3619821 at *6 [county jail is not a business establishment]; Taormina v. California Dept. of Corrections (S.D. Cal. 1996) 946 F.Supp. 829, 834 [state prison is not a business establishment].)
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 Unruh Act. While focusing on certain aspects of Isbister, these
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 Act‘s coverage “in the broadest sense reasonably possible.” ’ [Citations.] Under a parity of the reasoning adopted in Isbister, it appears relatively certain that it is ‘reasonably possible’ that ‘business establishments’ as used in the statute includes public schools.” (Id. at p. 952.) The court then pointed to Isbister‘s comment that “[t]he broadened scope of business establishments in the final version of the bill, . . . is indicative of an intent by the Legislature to include therein all private and public groups or organizations [specified in the original bill] that may
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 Unruh Act, its legislative history, scholarly commentary, and the decisions of our high court all demonstrate California‘s public school districts are not quintessential “public accommodations” within the meaning of our state‘s public accommodation law.
Casting beyond the Unruh Act, petitioner maintains a 1998 amendment to
As originally enacted in 1982,
In 1998, these statutory provisions were amended and augmented to consolidate and standardize anti-discrimination provisions previously scattered throughout the Education Code and to clarify that these provisions are enforceable through a private right of action for any “civil law remed[y],” including damages and injunctive relief. (
As the Assembly Judiciary Committee explained, “This bill would consolidate and standardize the non-discrimination language in the Education Code into two chapters, one for K-12 and another chapter for higher education. It would also strengthen the gender equity provisions for K-12 systems, clarify a private right of action for discrimination claims arising under the Education Code, and expand the remedies available for discrimination in educational institutions to include monetary damages.” (Assem. Com. on Judiciary, Assem. Bill No. 499 (1997–1998 Reg. Sess.) as amended Apr. 9, 1997, p. 1) The report also observed that the Department of Education had requested that instead of wholly eliminating the need to
In one of the last, if not the last, round of amendments, language referencing the Unruh Act was added to
“(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 and IX of the federal Civil Rights Act,Section 504 of the federal Rehabilitation Act of 1973 , the federal Americans with Disabilities Act, and the federal 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 ) ofChapter 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)) , the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq. ), the federal Equal Educational Opportunities Act (20 U.S.C. Sec. 1701, et seq. ), the Unruh Civil Rights Act (Secs. 51 to 53, incl., Civ. C. ), and the Fair Employment and Housing Act (Pt. 2.8 (commencing withSec. 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) .)
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 Education Code for easy reference and identification. The scattered, inconsistent language in the Education Code makes it hard for even the most well intentioned educators to be sure they are always in compliance with the law.” (Assembly member Sheila Kuehl, letter to then-Governor Pete Wilson, requesting his signature on Assem. Bill No. 499 (1997–1998 Reg. Sess.) Sept. 2, 1998, p. 1.) “The bill does not redefine or expand existing non-discrimination statutes.” (Ibid.) And to “solve [the] problem” created by delays in reviewing administrative claims and statute of limitations, “without putting schools at risk of immediate litigation or preventing students from pursuing a timely remedy, AB 499 requires a cooling off period, where K-12 students are required to go through four and a half months of administrative grievance processes prior to the pursuit of civil remedies other than injunctive relief.” (Ibid.) Accordingly, “AB 499 would help to contain the costs of litigation, while enhancing equal opportunity for California‘s students.” (Ibid.)
Accordingly, the 1998 amendments to
We also note the Education Code‘s extensive anti-discrimination statutory scheme prohibits the same kinds of discrimination as does the Unruh Act. In fact, the Education Code statutes are somewhat more generous than the Unruh Act in that they do not require a plaintiff to prove “intentional” discrimination, generally required under the Unruh Act (although not in cases of disability discrimination, as we discuss infra). (See Donovan, supra, 167 Cal.App.4th at pp. 603–608 [looking to Title IX (
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 Unruh Act, it nevertheless can be sued for disability discrimination under the Act by virtue of
Before discussing the statutory language at issue, we turn momentarily to the ADA, to point out it is comprised of three titles. Title I prohibits disability discrimination in employment. (
Returning to the Unruh Act, the language at issue was added to the statute in 1992 as part of omnibus legislation amending dozens of statutes to make them consistent with the ADA, then about to go into effect. (E.g., Assem. Com. on Judiciary, Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended Jan. 6, 1992, p. 2 [bill “seeks to conform state law with the provisions of the ADA“; it “intends to strengthen California law where it is weaker than the ADA” and “[m]odify the language contained in state anti-discrimination laws to ensure that the protections are given to individuals with physical or mental disabilities,” underscoring omitted]; Assem. Ways. & Means Com., Analysis of Assem. Bill No. 1077 (1991-1992 Reg. Sess.) as amended Jan. 1, 1992, p. 1 [bill “generally places protections afforded the disabled under the ADA into state law“].)
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
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.,
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 Unruh Act and that as to disability discrimination (and only disability discrimination) the Act was now disconnected from discrimination by business establishments. On the contrary, subsequent reports and analyses continued to describe the Unruh Act as prohibiting discrimination by business establishments. For example, the Senate Third Reading Analysis stated: “Existing provisions of the Unruh Civil Rights Act and related provisions, with certain exceptions, prohibit various types of discrimination by business establishments and franchisors, and in written instruments relating to real property, including discrimination on the basis of blindness and other physical disability. [¶] This bill would make a violation of the American with Disabilities Act of 1990 also a violation of the Unruh Civil Rights Act, and would expand the express coverage of that act and related provisions to include discrimination on account of any disability.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis on Assem. Bill No. 1077 (1991–1992 Reg. Sess.) as amended Aug. 29, 1992, at p. 2.) The Enrolled Bill Report by the Department of
We thus see no indication the Legislature intended, as to disability discrimination only, to transform the Unruh Act into a general anti-discrimination statute making any violation of the ADA by any person or entity a violation of the Act. On the contrary, throughout the legislative process, the Unruh Act was consistently described as prohibiting discrimination by business establishments. (E.g., Sen. Rules Com., Off. of
Even as shortened in the final round of technical amendments, the language at issue does not state that a violation of the ADA by any person or entity is a violation of the Unruh Act. Rather, it states “[a] violation of the right of any individual under the [ADA]” shall “constitute a violation of [the Unruh Act]“—the question thus being, a violation by whom? We think it is apparent from both the Act as a whole and the legislative history of the language in question, that it is a violation by a business establishment.
Moreover, plaintiff‘s interpretation would effectively render superfluous amendments made by this same legislation to other anti-discrimination statutes—notably the FEHA. Under plaintiff‘s construct, that “any” violation of the ADA is a violation of the Unruh Act, a violation of Title I of the ADA, prohibiting disability discrimination in employment, would also be a violation of the Unruh Act. However, the Legislature incorporated the protections of Title I of the ADA into our state law by specifically amending numerous provisions of the FEHA. (Legis. Counsel‘s Dig., Assem. Bill No. 1077 (1991–1992 Reg. Sess.) 1992 Stats. ch. 913, subd. (15), p. 380.) Under statutory construction principles, we do not construe legislative acts as meaningless surplusage. (See People v. Hudson (2006) 38 Cal.4th 1002, 1010
In addition, our Supreme Court had already held in Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 (Alcorn), that the Unruh Act does not apply to “employment” discrimination. The court explained: “Although this court has held that the term ‘business establishments’ in [Civil Code] section 51 was used in the ‘broadest sense reasonably possible’ (Burks [,supra,] 57 Cal.2d 463, 468–469 . . . ), it is doubtful that the Legislature intended these sections to apply to discrimination in employment. The broad language of [Civil Code] section 51 was adopted after several court decisions placed an unduly restrictive interpretation upon the former phrase ‘places of public accommodation or amusement’ in the predecessor section to section 51. [Citation.] However, there is no indication that the Legislature intended to broaden the scope of [Civil Code] section 51 to include discriminations other than those made by a ‘business establishment’ in the course of furnishing goods, services or facilities to its clients, patrons or customers.” (Alcorn, at p. 500, citing Horowitz, supra, 33 So.Cal.L.Rev. at pp. 272–276, 288–289, 294.) The court went on to add that its conclusion was “substantiated by the fact that at the same session wherein it adopted the language of [Civil Code] section 51, the Legislature also enacted extensive provisions governing discrimination in employment. . . . [¶] Although the [FEHA] cannot be deemed to have repealed any provisions of the Civil Rights Act . . . , we conclude that the concurrent enactment of the former act indicated a legislative intent to exclude the subject of discrimination in employment from the latter act.” (Alcorn, at p. 500.)
Petitioner impliedly acknowledges that Alcorn‘s holding—that the Unruh Act does not apply to discrimination by employers—refutes his assertion that any violation of the ADA is also a violation the Unruh Act, since Title I of the ADA prohibits discrimination in employment. He points out, however, Alcorn was decided prior to the 1992 amendment and suggests the case was legislatively overruled. There is not the faintest suggestion in the legislative history, however, that the Legislature intended to overrule Alcorn, as well as other cases by our Supreme Court following it. (E.g., Rojo v. Kliger (1990) 52 Cal.3d 65, 77 [“the Unruh Civil Rights Act has no application to employment discrimination“]; Isbister, supra, 40 Cal.3d at p. 83, fn. 12 [“the employer-employee relationship was not covered by the Act, which was confined to discriminations against recipients of the ‘business establishment‘s . . . goods, services or facilities’ “].) Accordingly, the controlling principle of statutory construction here is that the Legislature is deemed to have been aware of this existing law and to have enacted legislation consistent therewith. (See People v. Castillolopez (2016) 63 Cal.4th 322, 331.) Indeed, no subsequent case has ever suggested Alcorn was overruled by statute and is no longer controlling as to the scope of the Unruh Act. (See Alch v. Superior Court (2004) 122 Cal.App.4th 339, 391, 393–394 [generally discussing Alcorn and emphasizing it applies to the employer-employee relationship, and concluding the case did not apply to a person who sought to establish a relationship with a professional services agency but was allegedly rebuffed due to age discrimination].)
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 a restaurant based on Title III of the ADA (the title applicable to “public accommodations“) and brought under the Unruh Act pursuant to
The high court first reiterated the “purpose” of the Unruh Act—to ” ‘create and preserve a nondiscriminatory environment in California business establishments by “banishing” or “eradicating” arbitrary, invidious discrimination by such establishments.’ ” (Munson, supra, 46 Cal.4th at p. 666; see id., at p. 667 [the Act “has always provided substantive protection against invidious discrimination in public accommodations, without specifying remedies, and [
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 title III of that law (
The Supreme Court‘s discussion in Munson of
“The Unruh Civil Rights Act,” said the court, “broadly outlaws arbitrary discrimination in public accommodations and includes disability as one among many prohibited bases. ([
The DPA “substantially overlaps with and complements” the Unruh Act. (Jankey, supra, 55 Cal.4th at p. 1044.) It is, however, “[m]ore narrow in focus” than the Unruh Act and “generally guarantees people with disabilities equal rights of access ‘to public places, buildings, facilities and services, as well as common carriers, housing and places of public accommodation.’ ” (Ibid., quoting Munson, supra, 46 Cal.4th at p. 674, fn. 8.) “As with” the Unruh Act, “the Legislature amended the [DPA] to incorporate ADA violations and make them a basis for relief under the act. ([
Thus, Jankey, like Munson, was a business establishment case. And the court in Jankey, as it had in Munson, described the Unruh Act as prohibiting “business establishments” from engaging in invidious discrimination and described the significance of
In urging otherwise, petitioner relies on a line of federal cases that have allowed disability discrimination claims against government entities under Title II of the ADA to proceed concurrently as Unruh Act claims, the theory being
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 Title I of the ADA cannot be brought under the Unruh Act. (Id. at pp. 981–982.) The court squarely rejected the plaintiff‘s claim that 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 Unruh Act and the DPA,” (italics omitted) said the court, would “transform[] the subject-matter scope of these statutes, drastically broadening their reach from public accommodations to employment discrimination. (Ibid., italics added.) The language could “not . . . be interpreted in isolation,” but had to
The Bass court went on to point out the legislation adding the reference to the ADA “was a broad-spectrum enactment that amended a number of state laws in an attempt to create conformity between the gamut of California‘s discrimination provisions and those of the ADA. Notably, the bill also amended FEHA, in an attempt to harmonize the state‘s employment discrimination protections with parallel federal mandates. A.B. 1077, 1992 Reg. Sess. (Cal.1992). If, as Plaintiffs argue, the legislature intended to transform the Unruh Act into an all-inclusive anti-discrimination law, then its simultaneous strengthening of FEHA would have been unnecessary and anomalous.” (Bass, supra, 458 F.3d at p. 982.) Further, construing the language as a wholesale incorporation of the ADA into the Unruh Act and DPA would “create a significant disharmony” with FEHA‘s administrative scheme. In short, it would “create an end-run around the administrative procedures of FEHA solely for disability discrimination claimants.” (Id. at p. 982.) Nothing supported such a result. (Ibid.)
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 Unruh Act claim without leave to amend, is DENIED. Parties to bear their own costs.
Banke, J.
We concur:
Margulies, Acting P.J.
Sanchez, J.
A157026, Brennon B.
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.
Notes
Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, 264, 267–276, not cited by petitioner but which we reviewed in doing our own research, likewise, is of no assistance to petitioner, as the transit authority raised only one issue in its original writ proceeding—whether the plaintiff, in connection with an Unruh Act claim, could seek statutory “penalties.” The Authority did not raise, nor did the court address, whether it was a business establishment under the Act.