In Brennon B. v. Superior Court (West Contra Costa Unified School District), published November 13, 2020, the First District Court of Appeal, Division 1 denied a petition for a writ of mandate challenging an order sustaining the real party school district's demurrer to the petitioner's cause of action under the Unruh Act without leave to amend. The petitioner, who suffers from autism, alleged he has been the victim of disability discrimination by the school, and that the school had violated the Unruh Act. He contended that the school district was a "business establishment" under the Unruh Act. He alternatively argued that even if a school district is not a business establishment, Civil Code section 51, subdivision (f) made any violation of the ADA a violation of the Unruh Act.
The appellate court rejected both arguments. The California Supreme Court has not addressed whether a government entity, and specifically a public school district, is a business establishment within the meaning of the Unruh Act. The appellate court followed the analytical template the Supreme Court has employed in deciding whether a particular entity is a business establishment for purposes of the Act. The court examined the historical background of the Act, and concluded nothing in that historical context (as a legislative reaction to the U.S. Supreme Court's Civil Rights cases, dealing with federal legislation imposing antidiscrimination protections on private enterprises) supported application to public entities. In examining the Unruh Act's legislative history, the court noted that successive versions of the legislation reduced the statute's discussion of "schools," first limiting it to business and vocational training schools and then eliminating any mention of schools. By the time the Unruh Act was enacted, Brown v. Board of Education had already held racial discrimination in public schools unconstitutional. Nothing in the legislative history of the Act suggests that it was intended to reach discriminatory conduct by state agents, such as public schools. Supreme Court precedent grappling with the meaning of the term "business establishment" in the Unruh Act confirm that the elements the Court viewed as determining an entity was a business establishment--overall function enhancing economic value; providing athletic facilitiesas a principal activity and reason for existence; providing a physical plant for patrons to use at their convenience; conducting commercial transactions as an integral part of overall operations; providing the functional equivalent of a classic place of public accommodation or amusement; or providing the sale of a good--apply to school districts. Other lower court decisions have examined various legislative activities by public entities and concluded they were not the acts of a "business establishment" for purposes of the Unruh Act. Those California court decisions that have discussed the Act as applying to public entities have not analyzed the issue. Federal district court cases have split on whether the Unruh Act applies to California public school districts. The ones that conclude that it does do not properly analyze the issue. The court addressed whether Education Code section 200 et. seq.'s statement that the statute shall be interpreted as consistent with the Unruh Act did not expand the Act to covering school districts.
The appellate court also analyzed the argument that under statutory language, any violation of the ADA is a violation of the Unruh Act. It concluded that this language actually indicates that any violation of the ADA by a business establishment is a violation of the Unruh Act. The amendment of the Act to address ADA violations consistently discusses disability discrimination by business establishments. An interpretation of the Act to apply to any violation of the ADA would also run afoul of the California Supreme Court's holding that employment discrimination is not covered by the Unruh Act.
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