[UPDATED] California Appellate Court Holds Public School District Not a Business Establishment under the Unruh Civil Rights Act

UPDATE: On December 23, 2020, Brennon B. petitioned the California Supreme Court for review of the appellate court’s decision. On February 24, 2021, the California Supreme Court granted review. The Supreme Court is presented with two questions: (1) Is a public school district a “business establishment” within the meaning of the Unruh Civil Rights Act (Civ. Code, § 51)? (2) Even if a public school district is not a “business establishment” under that Act, can it nevertheless be sued under the Act when the alleged discriminatory conduct is actionable under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.)? In granting review, the California Supreme Court denied the request for an order directing depublication of the appellate decision.

In Brennon B. v. Superior Court (West Contra Costa Unified School District) (2020) 57 Cal.App.5th 367, the appellate court was asked to decide two issues: (1) whether a public school district is a “business establishment” for the purposes of the Unruh Civil Rights Act (Civ. Code § 51) (“the Unruh Act”), and (2) even if a school district is not a business establishment under the Unruh Act, whether it can still be sued under the Unruh Act where the alleged discriminatory conduct is actionable under the Americans With Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The court concluded that public school districts are not business establishments within the meaning of the Unruh Act and, therefore, cannot be liable for an Unruh Act violation.

The petitioner, Brennon B., who suffers from autism, alleged, among other things, that he had been the victim of disability discrimination at the hands of school personnel. The petitioner brought various causes of action against the District, including alleged violations of the Unruh Act and of the ADA. Unlike the ADA, damages are not limited under the Unruh Act, making it, potentially, a more attractive statute for plaintiffs to sue under.

In a case of first impression, the court looked at the historical background of the Unruh Act, and noted that public accommodation statutes have been, and remain, directed at private, rather than state, conduct. Public accommodation statutes, such as the Unruh Act, are the means by which the courts and the state have sought to reach and prohibit discriminatory conduct by private persons and entities that offer goods and services to the general public. Public school districts, in delivering constitutionally mandated free primary and secondary education to the state’s school age children, act as a “public servant, not as a commercial enterprise.” Thus, public schools are not business establishments under the Unruh Act.

The court then rejected the petitioner’s alternative assertion that even if a public school district is not a business establishment, it may still be held liable under the Unruh Act where the alleged discriminatory conduct is actionable under the ADA. While a violation of the ADA will also violate the Unruh Act, the court noted that the Unruh Act only applies to business establishments. Thus, while conduct may be actionable under the ADA against a school district, that same conduct is not actionable against the school district under the Unruh Act.

The court emphasized that it was not suggesting that public school districts are not subject to stringent anti-discrimination statutes. For example, in the employment context, school districts can be held liable for discrimination under the Fair Employment and Housing Act. However, as set forth in this decision, the Unruh Act is not applicable to public school districts. Accordingly, in a non-employment case, this decision can foreclose a common theory for plaintiffs to shift attorney’s fees and impact the amount of damages potentially recoverable by a plaintiff.

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