Reed v. Hollywood Professional School

• Decision Date: 13 April 1959
• Citation: 338 P.2d 633,169 Cal.App.2d Supp. 887
• Court: California Superior Court
• Parties: 169 Cal.App.2d Supp. 887 Cynthia Denice REED, etc., Plaintiff and Appellant, v. HOLLYWOOD PROFESSIONAL SCHOOL, et al., Defendants and Respondents. C. A. 9703. Appellate Department, Superior Court, Los Angeles County, California

Page 633

338 P.2d 633

169 Cal.App.2d Supp. 887

Cynthia Denice REED, etc., Plaintiff and Appellant, v. HOLLYWOOD PROFESSIONAL SCHOOL, et al., Defendants and Respondents.

C. A. 9703.

Appellate Department, Superior Court, Los Angeles County, California.

April 13, 1959.

Carl A. Earles, Los Angeles, for appellant.

Veatch, Thomas & Carlson, Los Angeles, for respondents.

HULS, Judge.

Plaintiff, a five-year-old Negro girl, by her guardian ad litem, appeals from the order and judgment of nonsuit; she claimed damages for violation of her civil rights under the provisions of Civil Code secs. 51, 52, 53 and 54, because of defendant's refusal to enroll her in defendant's school by reason of the fact that she was a Negro, and that she was discriminated against solely because she was a member of that race. At the trial it was stipulated that defendant is and always has been a private school.

Plaintiff contends that a private school is within the meaning of the words 'all other places of public accommodation or amusement' in Civil Code sec. 51, and that such denial creates a liability under the provisions of Civil Code secs. 51, 52, 53 and 54. Since sections 53 and 54 by their terms apply only to a person over the age of twenty-one years, they have no application here.

The evidence clearly shows that the owner of the defendant school told the guardian ad litem of the minor plaintiff that he could not admit Negroes, although a brochure from the school had been received by the guardian's wife, upon which she phoned the school for information.

Appellant contends further that the school is public in the sense that the state may regulate certain phases of it under the police power, involving a violation of civil rights because of race; further that the defendant school invites members of the public to attend and solely for financial support of the school. In view of the stipulation, these contentions are specious. It should be noted, also, that a system of common schools is required by the California Constitution by which a 'free' school shall be kept up and supported by the legislature (Constitution Article IX, sec. 5). The lawful existence of private schools is recognized, among other things, by a special exemption in the compulsory education law. 44 Cal.Jur.2d 134, sec. 428; Education Code sec. 16624. Piper v. Big Pine School Dist., 1924, 193 Cal. 664, 674, 226 P. 926. By article IX, section 1, of the state constitution, the advantages and necessities of a universally educated people as a guarantee and means for the preservation of the rights and liberties of the people has been declared: 'A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral and agricultural improvement.' (Emphasis ours.) Piper v. Big Pine School Dist., Supra, 193 Cal. at page 668, 226 P. at page 928.

The legislature has provided for a system of common schools (Education Code). The education of the children of the state is protected and safeguarded by a state board of education. Piper v. Big Pine School Dist., supra, 193 Cal. at page 669, 226 P. at page 928. 'The enjoyment of these privileges are enforceable rights vouchsafed to all who have a legal right to attend the public schools which cannot be enjoyed as a matter of right by those who, from choice or compulsion, attend schools without the control, supervision and regulation of the education departments of the state.' 193 Cal. at page 669, 226 P. at page 928.

The legislature, in our opinion, has not expressly provided for these safeguards of education to those attending the private schools in the state, who are 'exempted' by Education Code sec. 16624 from attendance in the public schools. The only requirements are that such schools shall be taught in the English language, instruction in the several branches of study required in the public schools, the keeping of attendance records, the hours of attendance, and that the tutor or other person shall hold the proper valid state credential. (Education Code sec. 16624-16625). Roman Catholic Welfare Corp., etc. v. City of Piedmont, 1955, 45 Cal.2d 325, 333, 289 P.2d 438, 441. 'Parents have the right to send their children to private schools, rather than public ones. * * *' Roman Catholic Welfare Corp., etc. v. City of Piedmont, supra, 45 Cal.2d at page 330, 289 P.2d at page 441. People v. Turner, 1953, 121 Cal.App.2d Supp. 861, 865, 263 P.2d 685.

But beyond these legislative requirements and those upheld by our courts as just referred to, they have not gone. Therefore, the question is whether a private school is one of the 'other places of public accommodation or amusement' within the meaning of Civil Code secs. 51 or 52.

The California cases cited by appellant were under our civil rights statutes, and those of other jurisdictions under similar statutes. The businesses referred to therein obviously were places of public accommodation or amusement similar to the expressly named places and of a similar kind of public accommodation or amusement.

The settled rule of law is that the expression 'all other places' means all other places of a like nature to those enumerated. Long v. Mountain View Cemetery Ass'n, 1955, 130 Cal.App.2d 328, 278 P.2d 945. While we have said that Civil Code sec. 51 'is to be given a liberal, not a strict, construction * * * this sweeping language [of the statute] does not cover 'all places', however.' Lambert v. Mandel's of California, 1957, 156 Cal.App.2d Supp. 855, 856-857, 319 P.2d 469, 470, citing Long v. Mountain View Cemetery Ass'n, supra, and Coleman v. Middlestaff, 1957, 147 Cal.App.2d Supp. 833, 834-835, 305 P.2d 1020. 'The general intent and significance of the foregoing provisions are clear enough. The purpose, of course, is to compel a recognition of the equality of citizens in the right to the peculiar service afforded by these agencies for the accommodation and entertainment of the public.' Stone v. Board of Directors of City of Pasadena, 1941, 47 Cal.App.2d 749, 753, 118 P.2d 866, 868.

In the court's opinion a private school is not a place of public accommodation or amusement, nor is it a public place of amusement or accommodation, within the meaning of Civil Code secs. 51 or 52. It is true that racial discrimination in public education is unconstitutional. Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Lucy v. Adams, 1955, 350 U.S. 1, 76 S.Ct. 33, 100 L.Ed. 3. See also (1959), 32 Ops.Atty.Gen. 264, 268. Rights of racial minorities have gradually been extended. James v. Marinship Corp., 1944, 25 Cal.2d 721, 155 P.2d 329, 160 A.L.R. 900 (discrimination by labor unions against negroes); Thompson v. Moore Drydock Co., 1946, 27 Cal.2d 595, 165 P.2d 901 (labor union); Williams v. International Brotherhood of Boilermakers, etc., 1946, 27 Cal.2d 586, 165 P.2d 903 (same); Perez v. Sharp, 1948, 32 Cal.2d 711, 198 P.2d 17 (miscegenation); Banks v. Housing Authority, 1953, 120 Cal.App.2d 1, 260 P.2d 668, certiorari denied by U. S. Supreme Court, 347 U.S. 974, 74 S.Ct. 784, 98 L.Ed. 1114. In general the extension of such rights has been based upon the discrimination exercised in businesses such as public service corporations or serving a general public purpose or where the public accommodation or amusement was public property or was being used in the exercise of a public function. The civil rights statutes have not been applied in the case or private or semi-private uses. 9 Ops.Atty.Gen. 271, 272. It was early decided that a Negro was not denied any constitutional right by refusal of a private education institution to admit him, apparently on the ground that the constitutional guarantees apply to state action rather than to private action. State ex rel. Clark v. Maryland Institute for Promotion of Mechanic Arts, 1898, 87 Md. 643, 41 A. 126; Booker v. Grand Rapids Medical College, 1909, 156 Mich. 95, 120 N.W. 589, 24 L.R.A.,N.S., 447; 10 Am.Jur. 910; Kirkpatrick v. Williams, 1949, 53 N.Mex. 477, 211 P.2d 506, 507; see 55 Am.Jur. 11, sec. 15; 10 Am.Jur. 909-910. Likewise in a review of state action the Supreme Court has held that it is invalid for courts to enforce restrictive covenants in deeds either by injunction or in actions for damages. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Barrows v. Jackson, 1953, 346 U.S. 249, 73...