Monday, February 09, 2009

CA Court of Appeal Protects the Religious Freedom of a Private School - says school not a business under the Unruh Act

A recent article in the Los Angeles Times by Maura Dolan, dated January 28, 2009, documents a unanimous ruling by a three-judge panel of the Fourth District Court of Appeals holding that the California Lutheran High School in Riverside County was not a business under the Unruh Act, and as such was allowed to enforce rules against apparent lesbian conduct.

According to the article, the case involved two female students who were expelled in their junior year for lesbian-like conduct. The court cited the 1998 California Supreme Court precedent finding that the Boy Scouts of America were not a business establishment under the Unruh Civil Rights Act. The girls sued the school for invasion of privacy, false arrest, and discrimination. The court found against them and for the school on these matters as well.

The court recognized the school’s religious belief that homosexuality is inappropriate. The court understood that the school’s conduct code allowing students to be expelled for engaging in immoral or scandalous conduct was an essential part of its religious message. The court wrote, “The whole purpose of sending one’s child to a religious school is to ensure that he or she learns even secular subjects within a religious framework.” This understanding is of key importance. Religious freedom would be a meaningless cliché if parents were not able to send their children to schools that actually teach and reinforce those religious beliefs. If religious schools are forced to engage in practices or allow practices that are antithetical to the core of their beliefs, those schools will no longer be able to truly reflect their faith.

This is not to say that there can’t be difficulties with religious schools. This is not to say that there can’t be grave difficulties with what a religious school might teach. Radical Islamic madrasas that advocate violence against non-Muslims merely because of their lack of faith in their radical brand of Islam, or who demand female genital mutilation are obviously problematic. But belief that sexual immorality is improper and should be discouraged particularly among the young is not a damaging or aberrant belief. The orthodox versions of all major religions and the majority of all world civilizations have taught that some restraint of human sexuality is good, necessary, and appropriate. Nearly all of them have agreed that homosexual conduct is inappropriate and immoral. Discouraging young people from homosexual activity is in no way physically damaging to them or to other people. Most religions and most civilizations would say it is actually spiritually and mentally beneficial and wholesome to discourage homosexual activity and other sexual immorality. This should not be mistaken as a bias against sexuality itself either. Biblical Christianity and again most major religions and civilizations have strongly encouraged the expression of sexuality within the sanctity of heterosexual marriage. Sex is a wonderful, beautiful, and powerful thing when it is part of the bond between a married man and woman. In other instances, this powerful force can be destructive in many ways. It is only reasonable that private schools should be allowed to teach what Christianity and indeed other religions have taught for thousands of years. They should be allowed to teach what the experience of millions of Christians has ratified. And it is a good thing that a court has been willing to recognize the law and its boundaries and limitations rather than giving in to the constant pressure of those who demand social approval for sexual immorality.

In the 37-page opinion in Jane Doe v California Lutheran High School Association et al, the court was considering an appeal from a summary judgment in favor of the defendants. The plaintiff’s attorney has indicated a desire to petition the Supreme Court of California to take up the case. Sadly, the California courts have already decided that certain religious corporations, even non-profit religious corporations, can sometimes be businesses under the Unruh Act. The court noted that the school is a social organization whose primary function is the inculcation of values. They cited the school’s mission statement that “CLHS exists to glorify God by using His inerrant Word to nurture discipleship in Christ…” The school is selective in its membership based on what it believes. The court pointed out that the school offers admission to Lutheran families and those who “are in harmony with the policies and principles of our school.” The court also cited a 1998 California attorney general opinion that the admissions decisions of private religious schools are not subject to the Unruh Act. The court further noted that precedent establishes that “private organizations can engage in some business transactions with members without the risk of becoming a business enterprise for the purposes of the Unruh Act.” The court does not address the question of whether the school would be allowed to violate the Unruh Act as an expression of association, religious freedom, or the rights of parents if they actually came under the Unruh Act. They merely looked at the narrow question of the Unruh Act’s applicability.

The court further noted with respect to the invasion of privacy count, that disclosing the school’s suspicions about the students’ sexual orientation to their parents was not an invasion of privacy. Indeed, the court noted that the parents had a right to know why their children were being expelled. The court noted that “even assuming plaintiffs had some legitimate expectation of privacy regarding their sexual orientation, that expectation was diminished once they enrolled in a private school that deemed homosexual conduct to be a violation of school rules. This is true even if they had never read the Christian conduct rule; obviously, the school had rules, and they could be subject to them even if they never read them.” The court further noted that there were no feasible or effective alternatives that would have had a lesser impact on the students’ privacy than the measures that were taken.

The court also rejected the cause of action for false imprisonment based on the questioning of the students by the principal for a period that allegedly extended over two hours. The plaintiffs had conceded that their false imprisonment claims stood or fell with their Unruh Act claim. Because the school’s purpose in the detention did not violate the Unruh Act, it was not unreasonable or contrary to law. There was no allegation that, apart from the Unruh Act violation, the confinement was excessive in duration or scope.

The court also ruled on a variety of discovery matters and dismissed a count of unfair competition that was also based on the Unruh Act. It is always encouraging to see the Court of Appeal apply California law in a clear, reasonable, and narrow manner.

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