It is almost like it could roll back 20 to 30 years of progress we have made in this area. Basically, this decision gives private schools the license to discriminate.
--San Diego attorney Kirk D. Hanson, who is representing the students
From the Los Angeles Times' article headlined School can expel lesbian students, court rules (Subheadlined: An appeals panel finds California Lutheran High School in Riverside County is not a business and therefore doesn't have to comply with a state law barring discrimination based on sexual orientation.):
After a Lutheran school expelled two 16-year-old girls for having "a bond of intimacy" that was "characteristic of a lesbian relationship," the girls sued, contending the school had violated a state anti-discrimination law.In response to that suit, an appeals court decided this week that the private religious school was not a business and therefore did not have to comply with a state law that prohibits businesses from discriminating. A lawyer for the girls said Tuesday that he would ask the California Supreme Court to overturn the unanimous ruling by a three-judge panel of the 4th District Court of Appeal.
The appeals court called its decision "narrow," but lawyers on both sides of the case said it would protect private religious schools across California from such discrimination suits.
Kirk D. Hanson, who represented the girls, said the "very troubling" ruling would permit private schools to discriminate against anyone, as long as the schools used their religious beliefs as justification...
Troubling indeed.
California's Unruh Civil Rights Act Cal. Civ. Code ? 51 is a California public accommodation law, and it guarantees full and equal accommodations, advantages, facilities, privileges, or services in all business establishments to all persons, regardless of sex (to include gender identity), race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation within California.
If this case is appealed to the California Supreme Court, and if the court takes the case, the question is going to revolve about the definition of a business in California -- whether or not a private school is a business.
[Below the fold, discussion of the Unruh Civil Rights Act, including how The Act defines what businesses are subject to the act.]
FindLaw Writ informs us on how broadly business activity that is subject to The Act is defined by The Act:
California law offers broad protection against discrimination by business establishments, guaranteeing all persons in the state "full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
A private school can be a non-profit enterprise -- are non-profits covered as businesses? According to the Fair Employment And Housing Fact Sheet On The Unruh Civil Rights Act, non-profit organizations are covered. In fact, the Catholic Charities of Sacramento lost a case taken to the California Supreme Court where the organization argued (as was noted in FindLaw Writ) that "it was exempt from complying with the Women's Contraception Equity Act, a California law requiring employers who offer prescription drug coverage to include prescription contraceptive coverage."
So, if one sells a product or service to the general public, even if selling that product or service is being sold by a non-profit entity, then the Unruh Act applies.
So, the question becomes whether or not a private school (such as California Lutheran High School), by accepting tuition from non-Lutheran parents/guardians for non-Lutheran high school students, can expel students because of the alleged sexual orientation (again -- sexual orientation being a protected class in California), is conducting business within California.
Here in California, we have a public accommodation law, commonly referred to as the Unruh Civil Rights Act. The Act is the state's bulwark against arbitrary discrimination in places of public accommodation. If a private school (such as California Lutheran High School) is considered to be conducting business in California, then Unruh Civil Rights Act guarantees every person in California full and equal access to all business establishments of every kind whatsoever.
The California 4th Circuit Court of Appeals stated today (January 28th, 2009), though, that a private school is not a business. I'm surprised by that decision, actually.
Frankly, with California's public accommodation law is so broadly written, and with the California Supreme Court previously ruling that The Act applied where a business attempted to use religious faith as a justification for not providing reproductive services to a lesbian couple, and a Catholic Charity attempted to disallow prescription contraceptive coverage when Califonia law stated that if it provieded any prescription drug coverage, it was required to provide prescription contraceptive coverage...
Well, assuming the California Surpreme Court takes this appeals ruling for review, I'm personally doubtful that the high court would uphold the ruling that concludes that California Lutheran High School isn't conducting business within California. And if it's conducting business within the state, then its behavior will no doubt be determined to be unlawful, arbitrary discrimination.
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Further reading:
* Education Labor Letter: Are We Allowed to Do That? School Policies Regarding Student Sexuality
* FindLaw Writ: The California Supreme Court Rules That Fertility Doctors Must Make Their Services Available to Lesbians, Despite Religious Objections
* Equality California: The Civil Rights Act Of 2005 (AB 1400) Factsheet
* Equality California Media Release (2005): California First State In The Nation To Pass Laws To Protect Against Discrimination In Insurance And Health Care Access, Public Accommodations And Domestic Partner Rights
* Focus On The Family/CitizenLink: Good News: California Court Sides with Christian School
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Related:
* Compliance With Unruh Act's Non-Discrimination Prohibitions Required
* Pam's House Blend Tag: Employment - Housing - Public Accommodation
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