Isbister v. Boys' Club of Santa Cruz, Inc.

• Decision Date: 21 October 1985
• Docket Number: S.F. N
• Citation: 219 Cal.Rptr. 150,40 Cal.3d 72,707 P.2d 212
• Court: California Supreme Court
• Parties: , 707 P.2d 212 Victoria ISBISTER, a Minor, etc., et al., Plaintiffs and Respondents, v. BOYS' CLUB OF SANTA CRUZ, INC., Defendant and Appellant. o. 24623.

Page 150

219 Cal.Rptr. 150

40 Cal.3d 72, 707 P.2d 212

Victoria ISBISTER, a Minor, etc., et al., Plaintiffs and Respondents, v. BOYS' CLUB OF SANTA CRUZ, INC., Defendant and Appellant.

S.F. No. 24623.

Supreme Court of California In Bank.

Oct. 21, 1985.

As Modified Dec. 10, 1985.

Rehearing Denied Dec. 19, 1985.

Robert E. Bosso, Sara Clarenbach and Adams, Levin, Kehoe, Bosso, Sachs & Bates, Santa Cruz, for defendants and appellants.

Shadle, Hunt & Hagar, Ernest L. Hunt, Jr., Vista, Horvitz & Greines, Ellis J. Horvitz, Kent L. Richland, Encino, Hughes Hubbard & Reed, Malcolm E. Wheeler, Los Angeles, Frank B. Blum, Jr., Daly City, Alvarado, Rus & McClellan and Raymond G. Alvarado, Orange, as amici curiae on behalf of defendants and appellants.

Susan M. Popik, Diane E. Thompson, Marjorie E. Cox, Anna M. Rossi, Rogers, Joseph, O'Donnell & Quinn, Susan L. Paulus, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, and Edward F. Newman, Santa Cruz, for plaintiffs and respondents.

John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston, Deputy Atty. Gen., Ellen S. George, B. Scott Silverman, Lisbeth Jones, Morrison & Foerster, San Francisco, Ware, Fletcher & Freidenrich and Robert T. Russell, Palo Alto, as amici curiae on behalf of plaintiffs and respondents.

GRODIN, Justice.

The Unruh Civil Rights Act (Civ.Code, § 51) guarantees every person in California "full and equal" access to "all business establishments of every kind whatsoever." ¹ The Act is this state's bulwark against arbitrary discrimination in places of public accommodation. Absent the principle it codifies, thousands of facilities in private ownership, but otherwise open to the public, would be free under state law to exclude people for invidious reasons like sex, religion, age, and even race. The Legislature's desire to banish such practices from California's community life has led this court to interpret the Act's coverage "in the broadest sense reasonably possible." (Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463, 468, 20 Cal.Rptr. 609, 370 P.2d 313.)

The Boys' Club of Santa Cruz, Inc., is a private charitable organization which operates a community recreational facility. ² The Club is open to any local boy for a nominal fee, but plaintiffs in this case were excluded because they are girls. We must decide, among other things, whether the Club is among those "business establishments" covered by the Act. If the Act does not apply, state law allows the Club to discriminate against female children, or on any other basis it chooses.

This state's law, as we shall demonstrate, has long prohibited arbitrary discrimination in places of public accommodation or amusement. Viewing the Unruh Act in its historical context, and in light of prior decisions of this court, we conclude that the term "business establishment" was meant to embrace, rather than reject, that well established principle. On the particular record before us, there can be no doubt that the facility operated by the Boys' Club comes within the scope of that principle: its recreational facilities are open to the community generally but closed to members of a particular group. These facilities are the Club's principal activity and reason for existence. We therefore agree with the Santa Cruz Superior Court, which found that the Club is a "business establishment" for purposes of the Act.

Like the superior court, we also reject the contention that the Club may nonetheless discriminate against girls because their participation would contravene "the nature of its business enterprise and ... the facilities provided." (See Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 741, 180 Cal.Rptr. 496, 640 P.2d 115, cert. den., 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (hereafter Marina Point ).) There is no substantial evidence on this record that the Club's programs, services, and facilities are unsuitable for girls, or that inclusion of both sexes in these programs would diminish their value or effectiveness. Nor is there proof that female memberships would cause serious and permanent danger to the Club's funding or its relationship with its national organization. We will therefore affirm the judgment of the trial court.

We emphasize the limited scope of our holding. Nothing in our analysis necessarily extends to organizations which operate facilities not generally open to the public, or which maintain objectives and programs to which the operation of facilities is merely incidental. Nor does our holding necessarily apply to an organization which can demonstrate a compelling need to maintain single-sex facilities. Finally, we do not preclude the Legislature from amending the Act to allow the Boys' Club to maintain its male-only policy. The validity of any such future legislation is not before us.

FACTS

The Boys' Club of Santa Cruz, Inc., a private nonprofit California corporation owns and operates a building which includes such recreational facilities as a gymnasium, an indoor competition-size swimming pool, a snack bar, and craft and game areas. The local Club is affiliated with the Boys' Clubs of America, Inc., a congressionally chartered organization. (See 36 U.S.C.A. § 691 et seq.)

Only members may use the Club's programs and facilities, but membership is open to all Santa Cruz children between eight and eighteen, so long as they are male. Members pay only a $3.25 annual membership fee. The principal source of funding for the Club--providing approximately 50 percent of its annual budget--is a gift in trust from John T. and Ruth M. Mallery (the Mallery Trust). The Mallerys also donated the money for the Club building. The trial court found that the Mallery Trust was "unrestricted" as to gender. In 1978, after this suit began, the Mallerys made a $200,000 donation which was expressly conditioned on restriction of membership to boys. Remaining funds come from the United Way campaign, an annual golf event, and miscellaneous private donations.

The Club is run by an adult board of directors, officers of the corporation, and a paid staff headed by an executive director. Club members have no power over Club affairs or membership policies.

The Club is unique in northern Santa Cruz County in the range and low cost of the recreational facilities and programs it provides under one roof. No single program or facility open to girls offers a similar range of activities at similar cost.

In 1977, plaintiff girls were denied access to the Boys' Club's membership and facilities solely on the basis of their sex. This action for injunctive and declaratory relief followed. After a trial on the merits, the court found that the Club's membership policy violated the Unruh Act, caused harm to the rejected girls, and deprived members of a nondiscriminatory environment. It permanently enjoined the Club from denying membership or access to its facilities to girls.

ANALYSIS

1. The Boy's Club is a "business establishment" covered by the Unruh Act.

The Club first contends that it is not a "business establishment" covered by the Act. We disagree.

Adopted in 1959, the Unruh Act, "[e]manat[es] from and [is] modeled upon" California's earlier statute forbidding arbitrary discrimination in "public accommodations." (Marina Point, supra, 30 Cal.3d at p. 731, 180 Cal.Rptr. 496, 640 P.2d 115.) The prior law, first adopted in 1897, derived from the common law doctrine that certain public enterprises are obliged to serve all without arbitrary discrimination. (In re Cox (1970) 3 Cal.3d 205, 212, 90 Cal.Rptr. 24, 474 P.2d 992; see Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1250 [fns. omitted] The Unruh Act "expanded the reach of [the prior public accomodations statute] from common carriers and places of public accommodation and recreation, e.g., railroads, hotels, restaurants, theaters, and the like, to include 'all business establishments of every kind whatsoever.' " (Marina Point, supra, 30 Cal.3d at p. 731, 180 Cal.Rptr. 496, 640 P.2d 115 (italics added), citing Horowitz, The 1959 California Equal Rights in "Business Establishments" Statute--A Problem in Statutory Application (1960) 33 So.Cal.L.Rev. 260, 272-294 (hereafter Horowitz).)

By its use of the emphatic words "all" and "of every kind whatsoever," the Legislature intended that the phrase "business establishments" be interpreted "in the broadest sense reasonably possible." (Burks, supra, 57 Cal.2d at p. 468, 20 Cal.Rptr. 609, 370 P.2d 313.) Indeed, the Unruh Act was adopted out of concern that the courts were construing the 1897 public accommodations statute too strictly.

That prior law, a model for subsequent civil rights legislation in other jurisdictions both state and federal, prohibited arbitrary discrimination by enumerated lodging, eating transportation, recreational, and entertainment facilities as well as "all other places of public accommodation or amusement, ..." (See Stats.1897, ch. 108, § 1, p. 137, as amended.) However, despite periodic additions to the list of covered facilities (see Stats.1919, ch. 210, § 1, p. 309 [public conveyances]; Stats.1923, ch. 235, § 1, p. 485 [soda fountains] ), lower appellate courts used the principle ejusdem generis to limit the law's reach. (See, e.g., Reed v. Hollywood Professional School (1959) 169 Cal.App.2d Supp. 887, 890, 338 P.2d 633 [private school not covered]; Coleman v. Middlestaff (1957) 147 Cal.App.2d Supp. 833, 834-836, 305 P.2d 1020 [dentist's office not covered]; Long v. Mountain View iCemetery Assn. (1955) 130 Cal.App.2d 328, 329, 278 P.2d 945 [private cemetery not covered].) "Accordingly, the Legislature, enacting the Unruh Act, modified the [prior] mandate ... and broadened its scope [to include] all business establishments of every kind whatsoever." ( Cox, supra, 3 Cal.3d at p. 214, 90 Cal.Rptr. 24, 474 P.2d 992.)

The original version of ...