Ruling that public schools are not “business entities” under California’s Unruh Civil Rights Act (Unruh Act), the State Supreme Court has denied coverage to a developmentally disabled man who claims he was repeatedly sexually abused by school employees and classmates during his time as a Special Education student at a Contra Costa high school.

Since the school is not liable, the man, identified as Brennon B., is not eligible for “enhanced remedies- particularly statutory penalties and attorneys’ fees.” This 7-0 unanimous ruling affirmed the First District Court of Appeal’s Decision to deny plaintiff’s petition for a writ of mandate on August 4.

Brennon has autism, low verbal skills, and mental and cognitive impairment. While attending De Anza High School in the West Contra Costa School District as a teenager, his capacities were those of a six- to seven-year-old. As a result, he was under an Individualized Education Plan (IEP) that required him to be supervised at all times, including when he went to the restroom.

The required supervision was not provided, and Brennon was sexually assaulted in a restroom by another student, then repeatedly by a student on his school bus. Brennon sued and won a favorable judgment in 2012. Tragically, the aide who was hired to supervise him forced him to perform oral copulation four times.

Brennon’s guardian sued the School District again in 2015 for negligent hiring and supervision, intentional infliction of emotional distress, and violation of the Unruh Act. The School District denied the claims, arguing that the school is “not a business establishment.” Both the trial court and the Court of Appeal agreed with the School District. The matter was settled, but the case continued because the Supreme Court thought it necessary to grant review on two issues: is a public school a business establishment under the Unruh Act and if not, may antidiscrimination suits proceed under the Americans With Disabilities Act (ADA)?

The Supreme Court opinion, authored by Associate Justice Joshua P. Groban, ruled that neither the 1992 nor 1998 amendments to the Unruh Act allow recovery. The Unruh Act in relevant part says that “all persons in the state are free and equal no matter what their sex, race, color, religion…medical condition, genetic information…” and other characteristics and “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Brennon claimed that amendments to the act broadened its coverage to include violations of the ADA and a section of the Education Act. Groban disagreed, citing both the legislative history and legal precedents that clarified the scope of the two referenced acts.

Groban noted that such major modifications would have required “clear language in the statutory text.” He wrote, “It is doubtful that the Legislature would have instituted such a significant change through silence.” He also wrote that the personal views of court members regarding wisdom or the morality of pernicious discrimination in schools must be discounted. The Court’s job is limited to “statutory interpretation” by law.

The opinion clarified that Brennon and other victims are definitely entitled to relief under other antidiscrimination laws. Rather, this case is only about whether Unruh’s treble damage awards and attorney fees, which can dwarf amounts available under other laws, are available. This is significant because approximately a hundred law firms, insurance companies, and non-profit organizations that support the rights of the disabled filed amici curiae or friends of the court briefs that support enhanced relief.

They argued that allowing Unruh Act remedies will encourage disabled people to assert their rights while preventing institutions from discrimination. In addition, Brennon and his supporters say that including schools as business establishments will “vindicate students’ rights, support the state’s policy against discrimination, promote the full integration of people with disabilities into public life, and ensure the safety of students in California public schools.”

They also said they believe enhanced damage awards will “incentivize lawyers to litigate worthy claims.” They said that the lack of statutory penalties and attorney fees make it “too costly” for lawyers to take on these cases. Their briefs included statistics that show nearly 750,000 students in California have disabilities and that those students “face increased rates of assault, bullying and harassment…”

Though their arguments advance worthy goals, the Court says that changing the availability of Unruh Act damages is “a decision that only the legislature can make.” The opinion cites numerous precedents that demonstrate that elected officials had opportunities to do so, but chose not to. Groban’s opinion went into extensive detail about the legal and dictionary definitions of “business establishment,” the “plain meaning of which he concluded, did not easily include “a public school district engaged in the task of educating its students.” He wrote that education is “not a commercial transaction,” and he reviewed the legislative history and intent of the Unruh Act to support his conclusion. He emphasized that the amendments to the Act over the years “ultimately eliminated reference to schools altogether.” He also distinguished schools from public accommodations, which are business establishments.

The Supreme Court opinion was also supported by a long line of state and federal precedents that clarified what was and was not covered by the Unruh Act. For example, a Boy Scout council was not covered, while a country club that did not admit women was. The opinion emphasized that the “core educational functions” of public schools are “fundamentally different from business.”

The Supreme Court repeatedly and perhaps apologetically decided, “There are exceedingly compelling, yet competing, policy concerns implicated by this case. Policy arguments, no matter how persuasive, cannot overcome a clear legislative intent derived from statutory text and appropriate extrinsic sources.”