License to Discriminate

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In a “narrow” ruling that is really quite expansive in scope, the California Court of Appeal for the 4th District ruled last week that a private religious high school was not covered by the state’s public accommodation law. As a result, the court effectively upheld the school’s decision to expel two female students for allegedly engaging in a homosexual relationship. In effect, this decision gives private religious schools carte blanche to discriminate against their lesbian and gay students.

California’s public accommodations law–the Unruh Civil Rights Act, Cal. Civ. Code § 51–prohibits discrimination on the basis of sexual orientation in “all business establishments of every kind whatsoever.” In reaching its decision that the school was not a “business establishment,” the court likened the school to a membership organization such as the Boy Scouts, which the California Supreme Court has held  not to be a business establishment for this purpose. The court stated that, “[j]ust like the Boy Scouts, the School ‘is an expressive  social organization whose primary function is the inculcation of values in its youth  members.'” What the court seemed to ignore in its analysis, however, is the fact that the school admitted not only the children of members of the church, but also children of nonmembers. Indeed, in its statement of fact, the court specifically mentioned that the school charged one rate of tuition for church members and a higher rate of tuition for nonmembers. If you ask me, a religious school that is open to the public–and not just to members of the church that operates the school–and that charges its students for access to its educational services is quite clearly a “business establishment” that should be prohibited from discriminating in violation of the public accommodations law.  

It is worth noting that it was the school’s  all-male board of directors that ultimately decided on these students’ expulsion. The board of directors is comprised solely of men because, in addition to believing that homosexuality is a sin, this denomination–to quote the court of appeal–believes that “women should not be placed in a position of authority over men.” Given these beliefs, it should probably come as no surprise, then, that the  creepiest and most disturbing portion of the court’s opinion–and the portion that demonstrates precisely why this school should be prohibited from discriminating against its students on the basis of sexual orientation and gender–concerned the male principal’s questioning of the two students concerning their sexual orientation. As the Los Angeles Times  reported:

“In addition to their discrimination claim, the girls complained that the school invaded their privacy and detained them unlawfully. The girls complained the principal sat ‘very close’ to them and asked them if they were bisexual, if they had kissed each other, and whether they had done anything ‘inappropriate,’ the court said.  

“Mary Roe said, ‘He got very close to me and he said, “Have you ever touched [Jane Doe] in . . . any inappropriate ways? And he looked me up and down when he asked that.”  

“But the court said there was no evidence that the principal had a prurient interest in the girls.”

The attorney for the expelled students (who are now in college) has indicated that they will appeal this decision.

-Tony Infanti

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