Government Liability Update

Because School Districts Are Not Business Establishments, the Unruh Act Does Not Apply to Them

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.

Parents May Not Attempt to Control School Curricula on Religion by Bringing Constitutional Challenges

In CAPEEM V. Torlakson, published September 3, 2020, the 9th Circuit Court of Appeals affirmed  judgment in favor of the State Board of Education and State Department of Education against a challenge brought by parents of Hindu children in California state schools.  The state defendants developed model curriculum outlines concerning the history of the world's first major religions.  The plaintiffs contended that the outlines carry a hostile and denigrating message about the origins of Hinduism when compared with similar provisions relating to other religions of the world.  They brought challenges to the outlines as violating their rights under Due Process, Equal Protection, and the Establishment and Free Exercise clauses of the First Amendment.  The district court dismissed all claims except an Establishment Clause claim, and then granted summary judgment on that claim.

The appellate court affirmed.  The Equal Protection claims fail because precedent bars attempts to control school curricula through Equal Protection challenges absent evidence of unlawful discriminatory intent.  The plaintiffs failed to articulate any discriminatory intent. Nor do their challenges to the adoption of the outlines show violation of Equal Protection because the drafters allegedly did not accept their proposed edits while accepting proposed edits from other religions.  Absent discriminatory intent, they cannot challenge the content of the curricula based on Equal Protection.  The court properly dismissed the Free Exercise challenge because the plaintiffs failed to articulate any burden on their exercise or practice of their religion.  They allege no penalty or coerced conduct.  The parents' Substantive Due Process rights to make decisions in their children's upbringing do not extend beyond the school door.  In regard to the Establishment Claim, the district court properly excluded the plaintiffs' expert declaration interpreting the outlines, because the issue was how a reasonable person, rather than an expert, would view them.  The court rejected the argument that the outlines established other religions by treating them better than Hinduism.  An objective reading of the material did not establish anything from the other religions as historically accurate, and did not denigrate Hinduism.

Statute Reviving Childhood Sexual Abuse Cases Barred by Claim Act Constitutional, but Does Not Apply to Parents' Claims

In E.D. Coats v. New Haven Unified School Dist., published March 12, 2020, the First District Court of Appeal, Division 2 reversed a judgment on the pleadings against a former student plaintiff, but affirmed the judgment against her foster mother's case.  From 2014-2015, when the student was 17, one of her teachers engaged in multiple acts of sexual intercourse with her.  In 2016, a year and a half after the intercourse was discovered and ceased, the student and foster mother sued the school district, principal, teacher, and others.  The student alleged causes of action for sexual abuse, negligence, breach of statutory duties in failing to adequately supervise teachers and protect students, and intentional and negligent infliction of emotional distress.  The foster mother sued for negligent and intentional infliction of emotional distress.  The plaintiffs contended that Government Code section 905, subdivision (m) exempted them from having to present a claim to the district under the Government Claims Act.  The district and principal argued that a district regulation adopted under Government Code section 935 (which permits public entities to enact claim requirements for actions that would otherwise be exempt from the claim requirements under Government Code section 905) required the student to present a claim; and that section 905(m) did not apply to the foster mother.  In 2018, while the appeal was pending, the Legislature amended section 935 by adding a subdivision providing any procedure authorized by the section does not apply to childhood sexual abuse claims, and stated it was declaratory of existing law.  Then in 2019, the Legislature amended Code of Civil Procedure section 340.1 (which sets forth the statute of limitations for childhood sexual abuse claims) to add a treble damages provision for cover-up of sexual assault of a minor; raised to 40 years of age the cutoff of a plaintiff's ability to sue third party defendants; and provided that any claim for damages that has not been litigated to finality and would otherwise be barred as of January 1, 2020 because "the applicable statute of limitations, claims presentation deadline, or any other time limit had expired, is revived, and these claims may be commenced within three years of January 1, 2020."  The same bill expanded section 905, subdivision (m).  The district argued that the revival portions of the new statute were unconstitutional.

The court of appeal ruled that the provisions were constitutional.  The constitutional prohibition on ex post facto laws applies to criminal statutes and statutes that are punitive.  The argument that the treble damages portion of amended section 340.1 failed, because there was no evidence of cover-up here.  Similarly, arguments that the scope of the revival of claims was unreasonable failed, because here the lawsuit was brought just a year and a half after the sexual abuse ended.  Because the statute would revive the student plaintiff's cause of action even if it had been barred by the claim statute, the trial court erred in granting judgment against her.

The court of appeal also ruled, however, that section 905, subdivision (m) applies only to direct victims of sexual abuse.  It does not apply to parents or others who suffer emotional distress as a result of the sexual abuse of a minor.  The trial court therefore properly granted judgment against the foster mother plaintiff.

School District Plan Limiting Parent's Communications with Teachers Did Not Violate Parent's First Amendment Rights

In L.F. v. Lake Washington School District, published January 17, 2020, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 lawsuit based on the plaintiff parent's First Amendment rights.  The plaintiff allegedly engaged in a pattern of sending incessant e-mails to school staff accusing them of wrongdoing, making demands, and leveling insults, and also acted agressively and in an intimidating manne in face-to-face interactions concerning the district's decisions about his children, including the plaintiff's contention that his daughter would benefit from a plan under section 504 of the Rehabilitation Act.  The district imposed a communication plan, under which the parent's substantive communications with the district about his children's education would be limited to bi-weekly, in-person meetings with two administrators.  The e-mail communicating the plan advised the plaintiff against e-mail or other communications with any district employees outside the bi-weekly meetings, as the employees would not respond to them.  The plan did not apply in the event of an emergency, did not prevent him from pursuing administrative appeals, and did not bar him from attending school activities or accessing school records.  The plaintiff was told he could appeal the communication plan to state court.  He did not do so.  When the district determined the plaintiff had violated the plan, it changed the frequency of meetings to monthly.  The district court concluded that the communication plan did not violate the plaintiff's First Amendment rights.

The 9th Circuit agreed.  The plan did not restrict the plaintiff's speech, because the only penalty for violating the plan was that the district employees would not respond to him.  The plan therefore restricted the employees' speech, not the plaintiffs.  Even if the plan could be deemed a restriction on the plaintiff's speech, it was a reasonable one.  Under the circumstances, a parent's communication with the school about his children was a non-public forum.  The regulation was therefore subject to limited First Amendment review:  it needed only to be reasonable to comply with the First Amendment, so long as it was not an effort to suppress the speaker's activity based on disagreement with the speaker's message.  These restrictions were reasonable, and were based on the manner in which the plaintiff communicated with the district--not the content of his speech.  The plan was therefore a reasonable effort to manage a parent's relentless and unproductive communications with district staff.

School District Was Entitled to Private Attorney General Fees for Enforcing Charter School Statutes

In Sweetwater Union High School District v. Julian Union Elementary School District, ordered published June 28, 2019, the Fourth District Court of Appeal, Division 1, affirmed an award of fees to the plaintiff school district under Code of Civil Procedure section 1021.5.  The plaintiff district alleged that the defendant district authorized a defendant charter school operator to operate defendant charter schools in the plaintiff's territory.  The trial court ultimately denied the plaintiff's petition for a writ of mandate directing the defendant district to revoke the defendant operator's charter, concluding that doing so would cause disruption for students of the charter schools.  But the trial court declared that the operator's operation at two of the charter school locations would be in violation of the Education Code, and enjoined operation of both locations.  The court then granted the plaintiff district's motion for attorney fees.

The appellate court affirmed the award of fees.  The parties did not request a statement of decision concerning the fee award, and the court did not issue one.  The appellate court therefore inferred all findings necessary to support the award were made.  The appellate court ruled that the trial court could have found the plaintiff district to be a prevailing party.  Even though the district did not succeed on all of its claims, it succeeded in obtaining declaratory and injunctive relief.  It could also have ruled that enforcement of charter school law was enforcement of an important right affecting public interest, that the ruling provided a significant public benefit by advancing the public interest in lawful operation of charter schools and the legislature's oversight objectives expressed in the charter school law, that the lawsuit was necessary to enforce the law, and that the financial burden made the fee award appropriate.  It could also have found that the amount awarded (the entire amount requested) was justified by the evidence the plaintiff district submitted.

To Plead a Title IX Violation, a Plaintiff Must Plead Nonconclusory Facts Showing Gender Bias

In Austin v. University of Oregon, published June 4, 2019, the 9th Circuit affirmed dismissal of a Title IX and due process action brought by three male student athletes.  A female student accused the three of forcing her to engage in nonconsensual sexual acts.  The university subjected them to a disciplinary proceeding.  A university official found the students responsible for sexual misconduct.  It suspended them for four years, and declined to renew their scholarships.

The 9th Circuit ruled that the FRCP 8(a) analysis for pleadings, rather than the evidentiary McDonnell-Douglas shifting-burden analysis, applied at the pleading stage.  Under that analysis, the district court properly dismissed the complaint, because the students failed to allege nonconclusory facts to link the proceedings against them with gender bias.  Their due process claims failed because the facts alleged establish that the university gave them due process. 

In Lawsuit against School District for Negligent Supervision of Teacher, Court Erred in Excluding Evidence of Alleged Prior Misconduct as Irrelevant

In D.Z. v. Los Angeles Unified School Dist., published May 14, 2019, the Second District Court of Appeal, Division 4, reversed a jury verdict in favor of the defendant district.  The plaintiff high school student alleged that a teacher inappropriately touched her, that school administrators knew or should have known of the danger posed by the teacher, and that the district's failure to respond appropriately to that knowledge caused her harm.  In response to a motion in limine under Evidence Code section 352, the trial court excluded all evidence of alleged misconduct by the teacher apart from inappropriate touching of students.  The evidence excluded included a risque joke about a student's chest that resulted in an investigation of the teacher.  It also included the teacher showing favoritism to female students and offering students rides home.  The trial court also gave, over the plaintiff's objection, jury instructions directing the jury to determine whether the school principal was a district employee and whether the principal acted within the scope of her duties when she harmed the plaintiff.

The appellate court ruled that the trial court abused its discretion by abusing the evidence as irrelevant.  Evidence of alleged misconduct other than the improper touching was relevant to whether the district had notice that the teacher's conduct was reasonably foreseeable, which must be determined under all of the circumstances.  While some of the evidence might not have been relevant, the line the court drew barring all non-touching evidence was improper.  The appellate court noted that trial courts may exclude relevant evidence as inflammatory.  The trial court, however, never reached that issue.  The appellate court ruled the exclusion prejudicial, particularly since the defense counsel used the exclusion to minimize evidence of the teacher's conduct before the alleged touching occurred.  The appellate court further ruled that the jury instructions concerning the principal's employment and scope of duties were improper.  Since the principal's employment and scope of duties were undisputed, the instructions served only to confuse the jury.

Presenting Claim after Action Filed Does Not Substantially Comply with the Government Claims Act's Requirements

In Le Mere v. Los Angeles Unified School Dist., ordered published May 14, 2019, the Second District Court of Appeal, Division 8 affirmed dismissal of an action after a demurrer was sustained without leave to amend. In a lawsuit filed in 2015, the school teacher plaintiff alleged she suffered harassment, retaliation, and discrimination from the date she filed a lawsuit against the defendant district in 2007.  A year after she filed the lawsuit, she presented a claim for damages to the defendant district. The First Amended Complaint included a cause of action for retaliation under FEHA.  The trial court sustained the defendants' demurrer to the cause of action with leave to amend.  The plaintiff did not amend the cause of action. The Second Amended Complaint alleged as causes of action against the defendant district harassment in violation of Education Code sections 44110 through 44114, and violation of Labor Code section 1102.5.  The trial court sustained demurrer as to the first cause of action, because the plaintiff was not given leave to add the new cause of action when demurrer was sustained to the prior complaint, and because the plaintiff failed to allege she filed a complaint with the police, a prerequisite to liability.  The court sustained demurrer to the section 1102.5 cause of action because the plaintiff had failed to comply with the Government Claims Act.

The appellate court affirmed the demurrer to the retaliation cause of action.  The plaintiff failed to allege that any of the named defendants engaged in any retaliatory conduct.  It does not allege the named defendants knew about the 2007 lawsuit, or were directed by others who did. Almost two years passed between the 2007 lawsuit and the first retaliatory act alleged, in 2009.  That is too large an interval to imply causation. Since the plaintiff elected not to amend, the court presumed she had pled her best case.  The court acted within its discretion in concluding the Education Code harassment cause of action was added without leave, and precluded by failure to file a police report.  

The appellate court also affirmed the decision that the Labor Code section 1102.5 cause of action was barred by failure to comply with the claim-presentation requirement.  A plaintiff cannot cure her failure to present a claim before filing suit by presenting a claim after filing suit.

Education Code Section Apportioning Liability for Use of School Grounds Does Not Abrogate Rules for Determining Dangerous Condition of Public Property

In Grossman v. Santa Monica-Malibu Unified School District, published March 25, 2019, the Second District Court of Appeal, Division 7 affirmed summary judgment granted to the defendant school district.  The school district permitted a school booster group and the PTA to hold a carnival fundraiser on a school's grounds.  During the carnival, an inflatable slide partially deflated and began to tip over while the plaintiff was on it, throwing the plaintiff to the concrete below.  The plaintiff alleged that the slide was improperly set up on the grass infield next to concrete, and that it was not tethered to the ground.  He alleged that the slide was a dangerous condition of property, and that the district knew or should have known that the slide was not set up, secured, or operated properly.  It was undisputed that the district did not own, operate, or set up the slide.  

The appellate court rejected the plaintiff's argument that Education Code section 38184 rendered the district liable for the plaintiff's injuries.  Subdivision (i)(1) of the statute apportions liability between  school districts and nonprofit entities using the school facilities or grounds.  Under the statute, a district is liable for an injury resulting from the negligence of the school district in the ownership and maintenance of the school facilities or grounds.  An entity using school facilities or grounds under this section is liable for an injury resulting from the negligence of that entity during the use of the school facilities or grounds.  Subdivision (i)(2), however, provides that the statute does not limit or affect the immunity or liability of a school district under the Government Claims Act for an injury caused by a dangerous condition of public property.  Based on this language, and the Education Code section's legislative history, section 38184 does not affect Government Code section 835's limitations on public entity liability for property conditions.  Under section 835, the district was not liable for the slide.  The slide was not district property, it was not operated by the district,  the conditions the plaintiff complained about did not result from the acts or omissions of district employees, and there was no evidence district employees had actual or constructive notice of the slide.

School District Did Not Infringe Student's First Amendment or Substantive Due Process Rights by Expelling Him in Response to Private Journal Entry Discussing School Violence

In McNeil v. Sherwood School District, published March 14, 2019, the 9th Circuit affirmed summary judgment in favor of the defendant school district in a 42 U.S.C. section 1983 case brought by a high school student and his parents.  The student wrote in his personal journal a hit list of students who "must die."  His mother discovered the journal in his room.  She made copies, and sought guidance from a therapist.  The therapist, believing the information triggered his duties as a mandatory reporter, contacted the police.  The police searched the house and confiscated a rifle and ammunition, but found nothing to indicate the student was planning to follow through with the list.  The police did not charge the student.  The police informed the school district.  As required by law, the district informed the parents of students on the list of the list, without identifying the author.  After media inquiries and social media accounts displaying the student's photo, the district informed all parents.  Parents transferred students out of the district, while others had their children skip school.  After a hearing, the district expelled the student for one year for making the list and disrupting the school.  The student sued for violation of his First Amendment rights.  The parents sued for violation of their due process right to educational venue choice.

The 9th Circuit ruled that the district had not violated the student's First Amendment rights.  When determining whether a school’s regulation of a student’s off-campus speech is constitutional, a court must consider all of the relevant circumstances.  The student's lack of intent to communicate the speech to any third party--such as when the student writes in a personal journal--is a relevant consideration, but it is not dispositive.  Here, the lack of intent to communicate the threat was offset by the fact his speech created an identifiable, credible threat of school violence.  He lived close to campus, and had weapons and ammunition.  The speech bore a significant nexus to the school.  The school district could therefore take disciplinary action.  Because his continued presence at campus would cause disruption, the discipline imposed was reasonable and not punitive.  The court also rejected the due process challenge to the expulsion.  That right entitled the parents to enroll the student at the high school.  Once there, the school had the power to administer discipline.  That included expelling the student from campus and supplying alternative, online instruction of him.