Badabing! In re: Cabading v. CBU!
- I got involved in this case (Raw Story link below) in the last couple of days and, given the course of the conversation, thought I would document my exploits here.
I think the case has relevance to the FFRF IRC 107 Challenge suit.
In order to view my part in the conversation, you will have to start at the most recent comments and scroll down through the first 3 - 4 pages of readers' comments.
Domainlor Javier Cabading
(aka Domaine Javier, Dominique Javier)
California Baptist University
It may take awhile for me to format my part in that conversation and get it posted; if ever I do.
(Spoiler: I think the relevant legal issues are rather unrelated to quibbling over whether or not Cabading is a girl or a boy, but there are those who seem to want to make Cabading into a cause and further increase the notoriety of Cabading's lawyer as "Queer Hero" and one of "the best LGBT lawyers under 40": http://www.dwt.com/people/paulsouthwick/ .)
California Court of Appeal Has Ruled That Private Religious School Is Not A Business Establishment Subject To The Unruh Act And Therefore Was Permitted To Discriminate Against Students Based On Perceived Sexual Orientation.February 06, 2009
The California Lutheran High School Association owns and operates a private religious high school located in Wildomar, California. The School is a nonprofit corporation that is affiliated with the Evangelical Lutheran Synod and the Wisconsin Evangelical Lutheran Synod (WELS), and offers both secular and religious classes.
These synods believe that homosexuality is a sin and as such, the School maintains a policy of refusing admission to homosexual students.
In early September 2005, a student reported to a teacher that one unnamed female student had said she loved another unnamed female student. The reporting student also told the teacher that if the teacher looked at all the students' MySpace.com pages (an internet based social networking site), the teacher would be able to determine the students' identities and their feelings for each other.
The teacher visited MySpace.com and looked at all of the profiles for the School's female students.
Jane and Mary were then pulled out of class and questioned by Pastor Bork in separate rooms.
Pastor Bork asked each of them whether they were bisexual and whether they had engaged in any inappropriate behavior.
According to Pastor Bork, both girls stated that they...had told other students that they were lesbians.
Pastor Bork then suspended them and called their parents to pick them up.
On October 15, 2005, the School's board of directors unanimously voted to expel Mary and Jane for engaging in a homosexual relationship.
Mary, Jane, and their parents sued.
Their complaint alleged three causes of action against the School only:
sexual orientation discrimination in violation of the Unruh Act;
gender discrimination in violation of the Unruh Act;
unfair business practices.
In addition, the complaint also alleged three causes of action against both the School and Pastor Bork, individually:
public disclosure of private facts;
violation of the California constitutional right to privacy;
The trial court granted summary judgment in favor of the School, ruling, in part, that
the School was not a business establishment for purposes of the Unruh Act.
Mary, Jane and their parents appealed.
At issue before the Appellate Court were the
(1) causes of action for violations of the Unruh Act;
(2) cause of action for unfair business practice;
(3) causes of action for invasion of privacy;
(4) cause of action for false imprisonment.
1. Causes of Action for Violations of the Unruh Act
The Appellate Court determined that in order to analyze Mary and Jane's claims for violations of the Unruh Act, the Court first had to ascertain whether the School was a business establishment within the meaning of the Unruh Act.
The Court began its analysis by reviewing prior court decisions that discussed whether certain organizations were business establishments for purposes of the Unruh Act.
As an initial matter, it noted that an organization is not excluded from the Act simply by virtue of its nonprofit status.
(T)he Supreme Court noted that generally, the Act "does not apply to truly private social clubs".
(T)he Court nonetheless concluded that "the business transactions that are conducted regularly on (a) club's premises with persons who are not members of the club," were sufficient to bring the club into the Act's broad reference to "all business establishments of every kind whatsoever."
Since (a) club's business transactions with nonmembers are "conducted on a regular and repeated basis and constitute an integral part of the club's operations...the club falls within the very broad category of 'business establishments' governed by [the Act]."
(T)he Boy Scouts rejected an applicant for a scoutmaster position on the basis of the applicant's announced homosexuality.
The California Supreme Court held that the Boy Scouts of America was not a business establishment within the meaning of the Unruh Act.
In its rationale, the Supreme Court explained that generally, the Unruh Act must be reasonably interpreted to apply to organizations, even charitable ones, whose activities and attributes are equivalent to a classic place of public accommodation or amusement.
The Supreme Court conceded that while the Unruh Act would apply to actual business transactions with nonmembers in the Boy Scout's retail stores, such transactions were distinct from the organization's core function and did not bring the Boy Scout's membership policies and decisions within the reach of the Unruh Act.
The Court next turned its analysis to California Lutheran High School, and determined that it is also an expressive social organization whose primary function is the "inculcation of values in its youth members[,]" similar to the Boy Scouts.
The Court found that the School specifically abides by Lutheran values, and makes its admissions decisions based on those values.
Citing to an opinion letter from the California Attorney General, the Court determined that the admissions decisions of private religious schools are not subject to the Unruh Act because the purpose of a private religious school was to educate children in keeping with religious beliefs.
As such, the Court held that the School was not a business establishment subject to the Unruh Act.
Although Mary and Jane argued that the School was a business establishment because it engaged in business transactions with the general public by virtue of its football ticket sales and similar offerings, the Court found that these transactions did not involve the sale of the basic activities and services offered by the School - to educate children and instill Lutheran values.
As such, they did not bring the School into the reach of the Act.
In addition, the Court noted that Mary and Jane did not allege they were discriminated against during a business transaction such as the purchase of a sweatshirt at an athletic event.
In such nonmember business transactions, the Court distinguished that the School could be prohibited by the Unruh Act from discriminating.
Citing to Curran, the Court noted that the School could "be a business and be hence prohibited from discriminating, with respect to its nonmember transactions, yet not be a business, and hence not prohibited from discriminating, with respect to its membership decisions."
In admissions decisions, however, which are based on Lutheran values, the Court held that the School was not a business establishment subject to the Act.
As such, the Court affirmed the trial court's granting of summary judgment in favor of the School on this cause of action.
2. Causes of Action for Unfair Business Practice
Mary and Jane also alleged that the School, by violating the Unruh Act, also violated the Unfair Competition Law.
The Court found, since the School did not violate the Unruh Act, the trial court properly granted summary judgment in favor of the School.
3. Causes of Action for Invasion of Privacy
(T)he Court stated that this right of privacy is only violated where there is "publicity" or "public disclosure," which is a communication to the public in general, and not just to a few people.
The Court found that Pastor Bork only disclosed the students' sexual orientation to the School's Disciplinary Committee and Board of Directors, which did not qualify as a disclosure to the public in general.
As further support for their claim, Mary and Jane argued that Pastor Bork also disclosed their sexual orientation to their parents.
The Court found, however, that since the School could lawfully expel Mary and Jane based on their sexual orientation and their parents had a right to know the reason for their children's expulsion, the School was entitled to inform the parents.
With regard to Mary and Jane's claims based on their constitutional right to privacy, in order to prevail, Mary and Jane had to establish that (1) they had a legally protected privacy interest; (2) they had a reasonable expectation of privacy; and (3) there was conduct by the School constituting a serious invasion of privacy.
The Court noted that, as an initial matter, although minors have a right to privacy that is protected by the California Constitution, the scope and application of that right is significantly different than that of adults.
Moreover, minors do not have legitimate expectations to privacy to engage in consensual sexual activity.
The Court further stated that even assuming that minors have a legitimate expectation of privacy regarding their sexual orientation, that expectation is diminished once they enroll in a private school whose policies prohibit homosexual conduct.
In addition, the Court reasoned that a minor student's expectation of privacy must be balanced with a school's obligation to maintain discipline. The Court compared the role of a school with that of a parent, for whom the school acts in loco parentis, meaning the school acts in place of the parent. The Court reasoned that since a parent would be entitled to ask a child about his or her sexual orientation, a school would be equally entitled to ask. Since Mary and Jane could not offer any alternatives that would have had a lesser impact on their privacy interests, and because Mary and Jane's expectation of privacy was outweighed by the School's countervailing interests, the Court found that the School did not violate the students' right to privacy. As such, the Court affirmed the trial court's granting of summary judgment in favor of the School on these causes of action.
4. Cause of Action for False Imprisonment
Finally, Mary and Jane also alleged that the School falsely imprisoned them by detaining them against their will for the unlawful purpose of questioning them about their sexual orientation.
The Court stated that generally, minors lack many of the fundamental rights of self determination, including the right to come and go at will. Minors are subject to the control of their parents or guardians, as well as teachers and administrators. Although the control by schools is not unfettered, as it cannot be exerted for arbitrary, capricious or unlawful purposes, schools do have certain rights, such as the right to detain a student, direct a student to go to a particular classroom, or send a student to study hall.
The Court noted that the crux of Mary and Jane's claim was that the School detained them for the unlawful purpose of questioning them about their sexual orientation. Thus, the Court determined, their false imprisonment claim fell within their Unruh Act claims. Since the Court had already determined that the School was not a business establishment within the meaning of the Unruh Act, the School could lawfully discriminate on the basis of perceived sexual orientation. As there was no unlawful purpose for the detention, the Court determined that the School did not falsely imprison Mary and Jane. As a result, the Court again affirmed the trial court's granting of summary judgment to the School.
Whether a private school is a business establishment within the meaning of the Unruh Act is a fact-based determination.
The Appellate Court's reasoning that the School was not a business establishment for purposes of subjecting its admissions practices to the Unruh Act appears to distinguish between the types of business transactions engaged in by the School.
Rather than hold that the School was wholly exempt from the Unruh Act, the Court stated that in some situations, the School would be prohibited from discriminating by the Unruh Act.
For example, the Court noted that the School would not be permitted to discriminate in its nonmember transactions, such as in the sale of football tickets, because of the Unruh Act.
Thus, while private religious schools' admissions and disciplinary practices may not be subject to the Unruh Act, schools should be aware that other business transactions may still be. Schools should also be aware that business transactions engaged in with the general public can also bring the schools into the reaches of the Unruh Act.
- I finally did come up with one document filed in the case, and it provides a pretty good discussion of the issues in dispute in the case, including reference to the cases in the foregoing post here and the Lipscomb University bond case.
If you read it closely, you might pick up on one or two fundamental issues on which the case might turn.
Maybe the case will be a big deal and set a precedent of some sort; maybe not, they might settle if they are interested in settlement and not pursuing the greater cause.
It's a little too close for me to call.
- Here's the report from the lawfirm representing Cabading:
News"DWT Pursues 'Enormously Significant' Discrimination Claim On Behalf of Transgender Student Expelled From California Baptist University," Davis Wright Tremaine Pro Bono Report
In a ruling described by one expert in gender law as “enormously significant,” a Superior Court Judge in Riverside County, Calif., has allowed DWT’s pro bono client Domaine Javier to proceed with her lawsuit against California Baptist University, which revoked her admission to the school after discovering her appearance on a TV show discussing the stigma of being transgender.
DWT associate Paul Southwick is spearheading the suit on Ms. Javier’s behalf. He and partner Timothy Volpert are working in collaboration with Clifford Davidson of Sussman Shank LLP.
Ms. Javier was born in the Philippines and lived there until she was 16. Though born male, she has viewed herself as female for as long as she can remember, and has presented herself as female since she was a child. Once in the U.S., she attended Riverside City College, where she was crowned Homecoming Queen for the years 2010-2011. She also sang alto in the choir of her Catholic church.
In 2011, she applied to transfer to California Baptist University (CBU), with plans to study nursing. She was accepted “with honors at entrance” for the fall semester, and was awarded academic scholarship funds. Following an audition, she was also accepted into the CBU woman’s chorus, and won additional scholarship money for her singing skills.
But several weeks before the school year was to begin, Ms. Javier received a letter from the CBU Dean of Students. He told her information had been brought to CBU’s attention indicating she had violated the school’s policies against “committing or attempting to engage in fraud, or concealing identity.” Her admission to the university had been suspended, the dean informed her, and she was banned from the campus.
The dean invited Ms. Javier to schedule a meeting to discuss the matter. Ms. Javier was told she could not bring anyone else to the meeting, nor take notes. At the meeting, the dean told Ms. Javier that her fraud consisted in having checked the box that said “Female” in the section of the university’s student application that asked for Gender. At this same meeting, the dean mentioned an episode of MTV’s “True Life,” on which Ms. Javier had appeared, discussing her transgender status.
Ms. Javier acknowledged being transgender and said selecting female for her gender on the application was not fraud, but consistent with her gender identity.
A few weeks later, by a second letter, Ms. Javier was expelled. She appealed to the university’s Student Services Committee but was denied. The ruling meant she was prohibited from enrolling—or even taking courses online; though she was granted permission to attend “public events” held on campus.
Southwick, who is in DWT’s Portland office, offered to help file a lawsuit on Ms. Javier’s behalf in California’s Riverside County Superior Court. The complaint states that the university breached its contract with Ms. Javier, and also violated California’s Unruh Civil Rights Act, which prohibits businesses from discriminating based on gender identity.
The university immediately sought to dismiss the suit, arguing that, as a religious institution, it was not bound by the restrictions of the Unruh Act.
But Southwick argued otherwise. He noted that the university, while private and religious, “competes in the public marketplace to attract students regardless of their religious affiliation.” He observed that the university offers a broad curriculum in secular subjects and that the “economic benefits” conferred on students through these services made the university a “business establishment” for the purposes of the Act. He also pointed out that CBU was a participant in a government backed, tax-free bond-financing program, through which “it has raised over $100 million…and is seeking an additional $155 million, to construct educational facilities to be used exclusively in support of secular education.”
In a ruling in May, Judge Matthew C. Perantoni allowed Ms. Javier’s case to go forward.
“This case stands for the proposition that a religious institution that makes services available to the public and receives public funds can’t discriminate based on religious views,” says Southwick, who is active in the national effort to make Christian universities more accepting of LGBT students. “When CBU chose to suspend, exclude, and expel Ms. Javier because of her gender identity, it violated the Unruh Civil Rights Act and must pay her damages for the injuries it caused her.” The case has received widespread attention. In an article in the Los Angeles Daily Journal, Suzanne Goldberg, director of the Center for Gender and Sexuality Law at Columbia University’s law school, called the judge’s ruling “enormously significant.”