Brennon B. v. Superior Court

August 17, 2022

Six million K-12 students stripped of California Unruh Act protections

On August 4, 2022, the California Supreme Court issued its decision in Brennon B. v. Superior Court, S266254, significantly compromising California’s long-standing role in the vanguard of civil rights.  The 7-0 decision holds that California public schools are not covered by the Unruh Civil Rights Act, one of the state’s key civil rights statutes.

The importance of strong California law protections has been underscored by recent decisions issued by the U.S. Supreme Court.  On April 28, 2022, the federal high court imposed new limitations on federal law remedies.  In Cummings v. Premier Rehab Keller P.L.L.C, 20-219, the U.S. Supreme Court ruled that emotional distress damages are not available under either Section 504 of the Rehabilitation Act of 1973 (which covers entities that receive federal financial assistance), or Section 1557 of the Affordable Care Act (ACA) (which mandates nondiscrimination in health care).  Cummings means that people must increasingly look to state laws to be made whole when they have experienced discrimination.

The August 2022 California Supreme Court decision comes against this new landscape of federal jurisprudence curtailing important federal remedies.  It thus has more practical impact than it might have had before 2022.

“The Brennon B. decision marks a retreat for nondiscrimination requirements,” states DREDF attorney Linda D. Kilb.  “It is at odds with the California Legislature’s long history of ensuring availability of robust civil rights protections.”  She notes that the ruling will particularly harm low-income and otherwise vulnerable public school students, who will no longer be able to draw on the deterrent and remedial protections of the Unruh Act.

Important aspects of the decision include:

• A holding that is purportedly grounded in analysis of the statutory text, purpose and legislative history of the Unruh Civil Rights Act, but which dismisses long-standing analysis and arguments to the contrary;
• An acknowledgement that this result is at odds with “exceedingly compelling” policy reasons for offering Unruh Act damages and deterrence protections to California public school students, but instead rests decision on the fiscal implications of exposing school districts and taxpayers to Unruh Act damages; and
• Repeated emphasis that the California Legislature is free to enact Unruh Act amendments to supersede the Brennon B. decision, and to clarify and confirm legislative intent to bring public schools within the ambit of the Unruh Act.

Kilb adds: “We are deeply disappointed in this decision, and we hope that the California Legislature will act to reinstate an expansive interpretation of the Unruh Act.”

The California Legislature crafted the Unruh Act (“Act”) to ensure that Californians’ rights against discrimination will always be secure, regardless of changes to federal authority.  First enacted in 1959, the reach of the Unruh Act has been steadily expanded over decades.  It now covers a wide range of diversity characteristics, and offers a full panoply of remedies to ensure that its nondiscrimination mandate can be effectively enforced.  The Act prohibits discrimination in “all business establishments of every kind whatsoever.”  This is a term of art in California law, which the Legislature has repeatedly confirmed is to be interpreted as broadly as possible.

The question of whether the “all business establishments of every kind whatsoever” provision applies to public schools had been largely regarded as settled law ever since an expansive federal court decision in Sullivan v. Vallejo City Unified School Dist. (E.D. Cal. 1990) 731 F. Supp. 947.  Sullivan was a DREDF case including Unruh Act claims, in which Kilb represented the public school plaintiff.  The California Attorney General participated in Sullivan, urging the federal court to hold (which it did) that the Unruh Act comfortably encompassed public schools.  In the three decades since Sullivan, numerous other courts have agreed.

In 2015, the California Legislature enacted AB 302, which extended specific protections to lactating students.  In making this change, the Legislature explicitly confirmed that the Unruh Act covers public schools.  However, the issue had not been addressed by the California Supreme Court until the Brennon B. case.

Building on her work on DREDF’s Sullivan case, Kilb organized a coalition of 30 California civil rights, education equity and legal services organizations, which filed three Brennon B. amicus briefs in support of the plaintiff family.  The brief authored by DREDF is available on the DREDF website. These amicus briefs detail California’s well-established commitment to equity in, as well as access to, public education, as reflected in both state constitutional and state statutory provisions.  The briefs also emphasize the critical importance of strong remedies, including the damages available under the Unruh Act, which provide avenues for recourse when rights are violated, and which also serve to deter violations.

You may contact DREDF attorney Linda D. Kilb at lkilb@dredf.org

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September 30, 2021
The California Supreme Court appeal began after a November 13, 2020, decision by the California First Appellate District Court. That decision, Brennon B. v. Superior Court (2020) 57, Cal.App.5th 367, held that this crucial state civil rights law does not cover California public schools. DREDF’s participation in Brennon B. is particularly significant, because Brennon B. raises questions about the importance and implications of a prior case that DREDF won over 30 years ago. That prior case was Sullivan v. Vallejo City Unified School Dist. (E.D. Cal. 1990) 731 F.Supp. 947, in which DREDF attorney Linda D. Kilb represented a public high school student in a lawsuit filed in federal court. While Sullivan was a federal court case, it involved the Unruh Act, Cal. Civ. Code §§ 51 et seq. and the California Disabled Persons Act. Cal. Civ. Code §§ 54.1 et seq. The California Attorney General filed a Sullivan amicus brief in 1989, arguing for an expansive view of California civil rights laws. DREDF is thus uniquely positioned to help the California Supreme Court to understand the history of California civil rights laws as they pertain to public schools. On September 15, 2021, DREDF filed a new amicus brief in the Brennon B. case, arguing that the broad Sullivan analysis of the Unruh Act—which has endured for three decades—is a correct interpretation of state law. In addition to the Brennon B. brief, DREDF also filed a request for judicial notice of the 1989 Sullivan brief filed by the California Attorney General. “Judicial notice” rules permit the California courts to consider additional materials—including historic materials—relevant to pending cases. In addition to the DREDF filings, there were three other amicus briefs filed in support of the plaintiff in Brennon B. Those briefs include a brief filed by Legal Aid at Work (LAAW), focused on disability rights law analysis; a brief filed by California affiliates of the American Civil Liberties Union (ACLU), focused on education equity analysis; and a brief by the Consumer Attorneys of California (CAOC), confirming the importance of the Unruh Act to Californians who rely on private bar attorneys to represent them.