By: Kiyra Ellis
The California Supreme Court announced its decision in Brennon B. v. Superior Court, holding victims of discrimination at public schools cannot recover remedies provided under the Unruh Act[1], one of California’s foundational anti-discrimination statutes. The Unruh Act entitles victims of discrimination to recover monetary damages for an amount up to three times their actual damages. The treble damage provision, demonstrating the Legislature’s strong commitment to providing remedies to victims of discrimination, improves access to justice by increasing the likelihood that attorneys will take a discrimination case.
The Act prohibits discrimination in “business establishments of every kind whatsoever.”[2] The Brennon B. decision erroneously concluded that in 1959, when the Unruh Act was passed, coverage of public schools was unnecessary because public school nondiscrimination rights were already federally guaranteed pursuant to Brown v. Board of Education.[3] This conclusion contradicts this state’s intent to ensure that Californians rights will always be secure, regardless of changes to federal authority.[4] The Legislature’s long-standing intent to protect discrimination victims supports reading the Act’s coverage over “all business establishments of every kind whatsoever” including public schools.
This interpretation had been accepted in federal court in the 1990 case Sullivan v. Vallejo Unified School District.[5] The California Attorney General participated in Sullivan by filing an amicus brief in support of the disability discrimination victim, agreeing with an expansive interpretation of “business establishment” that included public schools.
Brennon B. is a student with developmental disabilities at De Anza High School in the West Contra Costa Unified School District. Brennon alleges that during his time there, he was repeatedly sexually assaulted by other students and by a school-district staff member. In 2016, his guardian sued the district on his behalf, asserting various claims including allegations the district had violated the Unruh Civil Rights Act.
The Brennon B. case addressed the breadth of the definition of “business establishment” under the Unruh Act, specifically considering whether the definition included public schools. The court was asked whether a public school district is a business establishment for purposes of the Unruh Civil Rights Act and even if a school district is not a business establishment, whether it can nevertheless be sued under the Unruh Act where the alleged discriminatory conduct is actionable under the Americans with Disabilities Act (ADA).[6]
Combined with the California Disabled Persons Act[7], disability access plaintiffs are allowed to tack on state claims for money damages onto requests for injunctive relief in ADA lawsuits. The act allows plaintiffs to claim treble damages with a minimum of $4000 per access violation plus attorney’s fees. In most states, plaintiffs are entitled to only injunctive relief, having the disability access issue fixed. As a result of the damages claimed under Unruh Act, California accounts for 42% of all ADA litigation nationwide.[8]
California Supreme Court claims they are “by no means suggesting our public-school districts are not subject to stringent anti-discrimination laws. They are.”[9] The court justifies limiting the scope of the Unruh Act by citing other antidiscrimination statutes in the Education Code and Government Code.[10] The court is essentially saying “You have enough civil rights protections. You don’t need this one too”. However, the importance of the protections given by the Unruh Act is underscored by the reality students in California will have fewer protections from discrimination at school. Without the ability to pursue triple monetary damages, low-income students will have a more difficult time finding attorneys willing to take on their discrimination-based cases. “The Brennon B. decision marks a retreat for nondiscrimination requirements,” states The Disability Rights Education and Defense Fund (DREDF) attorney Linda D. Kilb. “It is at odds with the California Legislature’s long history of ensuring availability of robust civil rights protections.” [11]
This case highlights one of the biggest failures of the civil rights movement and legislation. While the civil rights movement produced many educational, professional, and political achievements of black people, they have failed to deliver in essential areas. Even as the civil rights movement struck down legal barriers, it failed to dismantle economic barriers.[12] Lower income students and families do not have financial resources to litigate discrimination claims. This is a huge barrier for disenfranchised people to bring establishments to court under civil rights legislation. The biggest advantage of the Unruh Act is plaintiffs’ ability to significantly increased damages. This gives plaintiffs economic power to pursue litigation and retain counsel to represent their case.
Discrimination of minorities and people with disabilities directly led to the economic barriers present today. California legislature’s commitment to dismantling these barriers requires an aspect of establishing economic power in vulnerable communities. This narrow interpretation of the Unruh Act strips away huge economic resources for lower-income students and families. The courts have proven their unwillingness to uphold legislative attempt to rectify economic disparities by providing increased economic damages to victims of discrimination. The court hides behind the plain language of the statute to avoid looking into the historical intent of this legislation. This ruling is a huge setback for civil rights protections in California.
[1] Unruh Civil Rights Act, Cal. Civ. Code, § 51
[2] Unruh Civil Rights Act, Cal. Civ. Code, § 51(b)
[3] Brown v. Board of Education, 347 U.S. 483 (1954).
[4] See, e.g., Gov. Code, § 12926.1, subd. (a) (“The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act of 1990 (P.L. 101-336).
Although the federal act provides a floor of protection, this state’s law has always, even prior to passage of the federal act, afforded additional protections.”).
[5] Sullivan v. Vallejo City Unified School Dist., 731 F.Supp. 947 (E.D. Cal. 1990).
[6] Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
[7] California Disabled Persons Act, Cal. Civil Code §§ 54 – 55.32.
[8] Tom McNichol, Targeting ADA Violators, Cal. Law., Jan. 2012
[9] Brennon B. v. Superior Court, No. 266254 (Cal. filed Aug. 4, 2022) at 370
[10] Id.
[11] DREDF, Brennon B. v. Superior Court (Aug. 17, 2022), https://dredf.org/2022/08/17/brennon-b-v-superior-court/.
[12] Beth Potier, ‘Failed promise’ of Civil Rights Movement, The Harvard Gazette (March 11, 2004), https://news.harvard.edu/gazette/story/2004/03/failed-promise-of-civil-rights-movement/
