Justices weigh classifying schools as businesses

Hearing a Bay Area case, the state Supreme Court appeared reluctant Tuesday to allow disabled students to seek damages under a California civil rights law, including triple damages in some cases, if a public school violates their rights.

Disabled students can recover some damages under state education laws for harm caused by discrimination. But the 1959 Unruh Civil Rights Act, at issue in this case, goes further, with penalties of at least $4,000 for each denial of equal access, punitive damages for intentional violations and attorneys’ fees.

But the Unruh Act, written by future Assembly Speaker Jesse Unruh, states that it applies to “all business establishments of any kind whatsoever,” and does not refer to government institutions. It applies to private schools; some courts, including most federal courts in California, have ruled that “all business establishments” can be interpreted broadly to include public schools.

Disputes over the meaning of California law are resolved by the state’s high court, and several justices seemed skeptical Tuesday of defining public schools as businesses under discrimination laws.

“We usually focus on language” and legislative actions in determining the meaning of a law, Justice Joshua Groban told Alan Dell’Ario, lawyer for a disabled student in the West Contra Costa Unified School District. Even an expansive definition covering businesses of “any kind, whatsoever,” Groban said, “seems like a pretty vague way to include schools.”

Dell’Ario acknowledged that “instinctively, people would have to agree” that a public school is not a business, for most purposes. But he said lawmakers had made it clear that their overriding policy was “to provide victims of discrimination the most remedies possible,” and had not changed the Unruh Act after it was applied to schools in early rulings by state and federal courts.

Later, when the school district’s lawyer, Cody Saal, cited the potential fiscal impact of Unruh Act damages on schools, Chief Justice Tani CantilSakauye said, “One might expect to see a reference in the legislative history (to those expenses) if it could apply to public schools.” Saal agreed. “Public schools are chronically underfunded,” she said, and subjecting them to higher damages “would significantly impede their ability to carry out their core public function.”

The court’s ruling will not affect the student, identified as Brennon B., who has settled his case against the district for $3.725 million, according to his lawyers. After the settlement, both sides agreed to present their case to higher courts to resolve the issue for future cases. Civil rights groups and disability advocates filed arguments in support of the student.

According to his lawsuit, Brennon had been diagnosed as severely autistic and was a 14year-old special education student at De Anza High School in Richmond in 2012 when he was sexually assaulted by another mentally disabled student in a restroom. Over the next three years, the suit said, Brennon was assaulted numerous times, including four times by a school district employee who was later criminally prosecuted.

After Brennon’s initial complaints, the suit said, the school agreed to assign a supervisor to accompany him to the restroom and on the school bus but failed to do so, and he was assaulted again.

At Tuesday’s hearing, Justices Carol Corrigan and Goodwin Liu both suggested that a public school could be classified as a private business, covered by the Unruh Act, when it rented its facilities for private use on weekends. That is a plausible interpretation, Saal replied, but it should not spill over into the school’s weekday function as a public institution.

“The overall core and primary function of public schools is public education,” the district’s lawyer said, and schools should not have to fear being labeled as businesses if they try to balance their books by hosting businesses.

A ruling in Brennon B. v. West Contra Costa Unified School District, S266254, is due within 90 days.