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Prior to coming to Columbia Law School as an Associate-in-Law, Michael Kavey worked at Lambda Legal, where he served as the lead attorney on a series of amici curiae briefs filed on behalf of a broad coalition of civil rights groups in cases involving the New York Human Rights Law. The briefs argued that the Human Rights Law’s student protections extend to students attending public schools and are not restricted, as several school districts have argued, to students attending private schools. Michael’s colleagues at Lambda Legal have continued this work since Michael came to Columbia, and the issue has now reached the state’s highest court. Here, Michael provides an overview of the issue and its importance to millions of students in public schools: 

In two cases of momentous importance to millions of young New Yorkers, the New York Court of Appeals is about to decide whether the antidiscrimination safeguards for students under the New York Human Rights Law (HRL) extend to students in public schools, or whether—as school districts around the state have recently argued—those safeguards protect only students educated in private institutions. The disputes center on Section 296(4) of the HRL, a provision making it unlawful for certain “education corporation[s] or association[s]” to deny access to, or “permit the harassment of,” any student on the basis of race, national origin, disability, religion, sex, sexual orientation or other enumerated factors.[1] According to the North Syracuse Central School District and the Ithaca City School District, whose cases are now before the Court of Appeals, public schools are not “education corporation[s] or association[s]” and therefore do not fall within Section 296(4)’s reach. Should the court accept the districts’ cramped interpretation of the HRL, the provision at issue—which constitutes one of the strongest and most inclusive state-level antidiscrimination and antiharassment protections for students in the nation—will be placed entirely outside the reach of the enormous majority of New York’s school children, becoming instead a special privilege for what one court called “the relatively minuscule percentage of students whose families can afford to send them to private, non-religious schools.”[2]

While the cases now before the court do not involve discrimination or harassment based on sexual orientation, the consequences of a ruling that eliminates the HRL’s protections for public school students could prove especially dire for the state’s lesbian, gay, and bisexual (LGB) youth. This is not only because LGB youth face alarming and disproportionate rates of harassment, bullying and violence, and not only because educators so often turn a blind eye to anti-LGB harassment, but because the specific HRL legal protection that the New York school districts are asking the court to place outside the reach of all public school students is the only provision under New York or federal law that expressly authorizes students to file suit for discrimination and harassment based on sexual orientation at school.[3] A ruling gutting Section 296(4) could also be devastating for students from low-income families, who are not only more likely to attend public school, but also much more likely to benefit from the uniquely affordable and accessible procedures available for students who file HRL complaints with the New York State Division of Human Rights.

Having followed closely and participated actively in debates over Section 296(4)’s scope in several areas of the state,[4] I have been amazed, and frankly appalled, by much of what I’ve seen. In an apparent effort to distract courts from the compelling textual and policy-based arguments demonstrating that public school students are entitled, like their private school counterparts, to Section 296(4)’s protections, some school districts have been willing to resort repeatedly to blatant misrepresentations of the law, contradictory reasoning, and implausible policy arguments that would be laughable if they were not so dangerous. Granted, we should not be surprised that school districts and their representatives work zealously to minimize financial liability in civil rights suits (or any other suit, for that matter); I do not mean to suggest, of course, that public schools should not defend themselves when they have a reasonable basis to do so. But not all defenses are equally defensible. In the litigation over Section 296(4), school districts across the state have not only advanced misleading and distorted interpretations of the law, but they have done so knowing very well that if they prevail, they will do much more than avoid financial liability; they will also eviscerate a unique and uniquely important antidiscrimination safeguard for millions of students in public schools.

Unfortunately, despite the weaknesses in the school districts’ position, some courts—including one intermediate appellate court—have ruled in their favor. A clear split now exists among appellate courts in the state, leading the Court of Appeals to take the case.

While a complete exploration of the legal issues is beyond the scope of this blog post, I’ve summarized some of the key points in the sections that follow. I’ve also provided links to the briefs and other sources, in both the texts and the notes.[5]

The Ithaca Controversy and Other Challenges Throughout the State

The case from Ithaca—one of the two now before the Court of Appeals[6]—presents particularly wrenching facts. According to the New York Division of Human Rights, which investigated and conducted two days of hearings on the matter, white students at the DeWitt Middle School in the Ithaca City School District subjected a twelve-year-old African American girl, who was also a DeWitt student, to vicious and relentless racial harassment, particularly on the school bus. The Division found that, among other things, students harassing the young girl hurled vile racial and sexual epithets at her and another black student on repeated occasions, punched the young girl, spat on her, threw things at her, threatened her with gun violence, and held up a “KKK” sign to her. The young girl’s mother, Amelia Kearney, had repeatedly complained to school officials, who responded, when at all, by imposing limited disciplinary measures on the offenders—measures that a DeWitt associate principal later described as meaningless; the same official, the Division has noted, “admitted that reports of racial epithets on the bus had not triggered in him the need of pursuing more aggressive and severe punishment for the white male boys, in part, because the hallways were filled with this language.” Unsurprisingly, the education, health and well-being of Ms. Kearney’s young daughter suffered drastically.[7]

A person aggrieved by a practice made unlawful by the HRL may file a lawsuit in court or may, as Ms. Kearney did on behalf of herself and her daughter, file a complaint with the Division. The Division may then investigate the matter and determine whether it merits a public hearing, as the Division did here. As this matter involved discriminatory harassment of a student, the Division relied for its authority on HRL’s Section 296(4).

The Ithaca City School District’s initial response was not merely to contest the allegations on the merits, but to assert that the HRL—and Section 296(4) specifically—only protected students in private education, and that the Division, whose responsibility is to enforce the HRL, therefore lacked authority to take action on Ms. Kearney’s complaint. Alarmed by the school district’s position and its potential consequences for millions of public school students, a colleague and I drafted a public letter in October 2007 on behalf of Lambda Legal to the Ithaca City School District Board of Education. While we did not question the district’s right to defend itself on the merits, we urged the district to abandon its sweeping attack on the HRL’s scope: “To elect a defense that would undermine crucial human rights protections,” we wrote, “is a shortsighted, unjustified and potentially destructive strategy that flies in the face of the Board’s broader duty to stand up for all students.” The letter, which formed part of (and contributed to) growing community outrage over the school district’s position, apparently struck a chord with the Board, which voted unanimously at a later meeting to rescind its attack on the HRL’s scope, and to defend itself before the Division on the  merits. The Board member who called for the vote to reconsider the legal strategy publicly thanked Lambda Legal, saying that the organization had “allowed many of us to look at this issue differently.”

Unfortunately, the school district’s change of heart did not last. After the case proceeded to a hearing on the merits, the Division found in favor of Ms. Kearney and her daughter. The head of the Division—the Commissioner of Human Rights— confirmed the Division’s findings against the school district, and ordered various forms of injunctive relief, such as training procedures; the Commissioner also ordered an award of $400,000 in damages for the Kearneys. Appealing the Commissioner’s decision in state court, the school district sought to nullify the award by reviving its argument that the HRL’s civil-rights protections for students apply only to private schools. An intermediate appellate court—the Third Department of the Appellate Division—rejected the school district’s challenge to the HRL’s scope (though it reduced the damages award to $250,000), and the school board voted 5-1 to appeal to the Court of Appeals. At the board meeting to approve the appeal, one board member offered a surprising explanation for the district’s position: “In no way does the district question the merits of the Kearney case,” Board member Rob Ainslie explained, adding that “[t]hat is not the issue here.” Ainsile apparently found it unfair, however, that a school district in another region of the state had recently won a similar appeal before a different court; school districts in that region (the Second Department) were therefore not bound (for the time being, at least) by Section 296(4). “The issue here is that state law is being applied differently depending on where you live,” Ainsile explained. He therefore portrayed the appeal as a mere effort to clarify whether the HRL applies to public schools or not: “If it does apply,” he said, “that is fine, but we just need to know.”[8]

To absolutely no one’s surprise, the Ithaca City School District has not actually argued on appeal that it would be “fine” for the HRL to apply to public schools; nor has it proposed that the Court of Appeals resolve the problem of state law “being applied differently depending on where you live” by clarifying that the HRL protects all public students throughout the state. Instead, its brief insists that HRL Section 296(4) does not cover public schools. The New York State School Boards Association has filed an amicus brief in support of the school district’s position. Attorney General Eric N. Schneiderman filed an amicus brief on behalf of the State of New York and in support of the Division, urging the court to hold that HRL Section 296(4) applies to public schools. Lambda Legal has submitted a brief on behalf of twelve amici, also in support of the Division; the amici include the NAACP Legal Defense and Educational Fund, the Anti-Defamation League, the Asian American Legal Defense and Education Fund, Disability Advocates, the New York Civil Liberties Union, Advocates for Children of New York, and various organizations working specifically for the equal rights of gays, lesbians, bisexuals and transgender people.[9]  The Court of Appeals heard oral arguments earlier this month.[10]

While the Kearney case now before the Court of Appeals has come further, procedurally, than any similar case, the Ithaca City School District is hardly the only district in recent years to contest the Division’s jurisdiction or to argue that the HRL’s protections for students apply exclusively to those in private schools. Other school districts arguing in recent litigation that the HRL’s antidiscrimination provisions do not protect their students (or any other public school students) include the East Meadow Unified Free School District in Nassau County, the Newfield Central School District in Tompkins County, and the Indian River Central School District in Jefferson County.[11] In East Meadow Unified Free School District v. New York State Division of Human Rights, the Second Department of the Appellate Division agreed with the school district that the HRL did not protect public school students; the Third Department’s subsequent decision in the Ithaca matter created the split that the Court of Appeals must now resolve.

As noted above, the New York State School Boards Association (NYSSBA) has also gotten involved in the litigation, but like the Ithaca City School District, it has not maintained a consistent position. Relying on what it called the HRL’s “express language” and underlying policy, the NYSSBA fervently argued in a 2008 amicus curiae brief to the Second Department that all students in public schools are entitled to the HRL’s protection. In its more recent brief to the Court of Appeals in the Ithaca case, however, the NYSSBA has completely reversed its position, arguing that the HRL provides no antidiscrimination safeguards to students in public schools.

The Scope of Section 296(4): This Should Not Be a Close Call

The fact that litigants and others have shifted positions and that the Departments of the Appellate Division have disagreed with each other might lead one to assume the legal issues are complicated or confusing. They are not: A straightforward, plain-language reading of the relevant statutes makes clear that the HRL protects public school students. Policy considerations explicitly spelled out in the HRL reinforce this conclusion.

HRL Section 296(4) makes it unlawful for a tax-exempt, nonreligious “education corporation or association” to discriminate against or “permit the harassment of any student or applicant” based on race, religion, disability, sex, sexual orientation or other factors. As public schools are tax-exempt and nonreligious,[12] the dispute over whether public school districts are subject to Section 296(4) has centered on whether they are “education corporation[s] or association[s].” If they are neither, HRL 296(4) does not apply to them, and their students have no recourse under the HRL.

The HRL does not define “education corporation or association.”  The state’s General Construction Law, however, defines “education corporation.” (The General Construction Law sets forth generally applicable definitions for some common terms that appear elsewhere in New York’s statutes. Subject to some exceptions, the General Construction Law’s definitions apply to any term not elsewhere defined in the law.)  According to Section 66(6) of the General Construction Law, the term “education corporation” includes any corporation “formed under” the Education Law.[13] Because school districts are defined by both statute and the state Constitution as “corporations,”[14] and because they are “formed under” the Education Law,[15] they are plainly “education corporations.”

Other considerations reinforce the conclusion that the term “education corporation” includes public school districts, at least when applied in the HRL context. Section 300 of the HRL mandates, for example, that courts “liberally construe[]”the statute’s provision to effectuate its purposes, which include “eliminat[ing] discrimination by the state or any agency or subdivision of the state,”[16] and “eliminat[ing] and prevent[ing] discrimination in . . . educational institutions.”[17] The Court of Appeals has applied this rule of liberal construction not only to define the conduct that the HRL proscribes, but also to determine to whom and to what entities the HRL applies.[18] Therefore, even if there were any ambiguity in the definition of “education corporation”—which there is not—the rule of liberal construction would compel the conclusion that, as applied in the context of the HRL, the term encompasses public schools.

Alternatively, even if the General Construction Law clearly excluded public school districts from its definition of “education corporation” as a general matter, that would not vindicate the school districts’ stance. Section 110 of the General Construction Law provides that the law’s definitions do not apply where the “general object” of a statute “or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended.”  For reasons explained in briefs from the Division of Human Rights, Lambda Legal, and the Attorney General (see links above), this limitation on the General Construction Law’s scope prevents it from thwarting the provisions of the Human Rights Law, regardless of what “education corporation” might mean in other contexts. The “general object,” “context,” and “other provisions” of the Human Rights Law all make clear that the legislature could not have intended the statute to provide expansive civil-rights protections to private school students while offering none at all to public school students.[19]

Lastly, even if there were absolutely no way to read “education corporation” to include public school districts, school districts would still be subject to Section 296(4) as “education . . . association[s],” for reasons elaborated in Lambda Legal’s briefing.[20]

How have school districts, their representatives, and the few courts to agree with them responded to these arguments? While I cannot analyze and dissect every response in this blog post, a few points are worth highlighting. (The reader can also refer to the decisions and briefs themselves, using the links available in this post.)

One approach adopted by those who favor a narrow reading of Section 296(4) has been to disregard entirely the statutory provisions that undermine their conclusion. In East Meadow Unified Free School District v. New York State Division of Human Rights, for example, the Second Department of the Appellate Division acknowledged that the General Construction Law defined “education corporation,” but the court did not discuss or even quote the text of that definition; nor did the court even cite to the correct section of the General Construction Law (that is, the section containing the definition). Instead, the court relied on various other sections of the General Construction Law to conclude—contrary to the law’s text and the court’s own precedent—that education corporations were necessarily private entities.[21] The court also failed to acknowledge the HRL’s express mandate of liberal construction, despite repeated admonitions from the Court of Appeals that the rule of liberal construction is central to any interpretation of the HRL. Finally, the court refused to address or even acknowledge the argument, discussed above, that relies on General Construction Law § 110.

Another approach has been to simply mischaracterize or misrepresent what a statute says. In the case now pending before the Court of Appeals, the Ithaca City School District has told that court that the General Construction Law “defines ‘education corporations’ to be corporations chartered by the Regents or formed by a special act of the Legislature, and therefore, excludes school districts.” It would be generous to call this an “argument,” as it is essentially just a mischaracterization of the statute’s plain text. As explained above, the cited provision defines “education corporation” to include any corporation “formed under” the Education Law.

Implausible policy arguments have also played a role in school districts’ attempts to restrict the HRL’s scope. The school district in the Second Department case, for example, claimed that it was “simply too unlikely that the legislature would have intended [HRL Section 296(4)] to include school districts because a special expertise is required for districts to properly carry out their educational mission and to meet the needs of all of their students—an expertise that the Division [of Human Rights] does not possess.” As the school district acknowledged, however, Section 296(4) does apply to certain private schools (those that are tax-exempt and non-religious); the school district’s argument would therefore seem to imply that running a private school does not require “special expertise.” The school district’s argument also ignores the long-established and undisputed fact that the HRL’s employment protections apply to public school employees. If the legislature has extended antidiscrimination protections to the employees of public and private schools, and to the students of private schools, why is it so “unlikely” that the legislature would enact protections for the students of public schools as well?

The Dangers of Restricting the HRL’s Student Protections to Private Schools

School districts challenging the scope of HRL 296(4) have attempted to downplay the damage that would be done by limiting the provision’s scope to private schools, arguing that plenty of other provisions under state and federal law provide ample protection to students in public schools. None of these other laws, however, are remotely comparable to HRL Section 296(4), because they lack one or more of its essential features; that is, they do not enumerate as many prohibited bases of discrimination, they do not include a prohibition on “permitting . . . harassment,” they do not expressly authorize private lawsuits or allow for damages, they do not provide access to the Division’s resources and provisions, and/or they do not apply to schools at the elementary and secondary as well as post-secondary level. As I noted at the outset, the consequences of a ruling for the school districts could be especially devastating for LGB youth, as no other provision of state or federal law expressly provides students a cause of action for harassment based on sexual orientation.

Preserving Section 296(4)’s protections for public school students is also essential given the uniquely accessible, affordable, and flexible nature of HRL proceedings. In his amicus brief to the Court of Appeals in the Ithaca matter, the New York State Attorney General explains:

The Human Rights Law also offers remedies and procedural protections unavailable under other statutes, including the ability to raise discrimination claims before the Division and to resolve those claims through an accessible administrative process. . . . [T]he Division’s administrative forum offers complainants a less complicated and more affordable alternative than litigating discrimination claims in court. If a complainant cannot afford counsel, the Division will provide an attorney or other representative to present the complainant’s case at the administrative hearing. “And because conciliation efforts are an integral part of the administrative process,” the Human Rights Law offers a “unique vehicle” for “resolve[ing] claims expeditiously without the time and delay entailed in filing a lawsuit.[22]

In view of the HRL’s broad remedial purposes—and its declaration that the opportunity to obtain an education free from discrimination is a “civil right”[23]—it is outlandish to believe that the legislature intended to provide only private school students, and not public school students, access to these Division procedures. But that is exactly what the school districts in Ithaca, North Syracuse, East Meadow and elsewhere would like the Court of Appeals to believe.

The Outcome: This Could be Close

While arguments grounded in the express text and policy of the relevant statutes weigh overwhelmingly in favor of preserving the HRL’s protection for public school students, this might not be enough, as the Second Department’s baffling decision in the East Meadow case reminds us. Indeed, oral arguments at the Court of Appeals earlier this month suggest that the vote on Section 296(4) could be close: While several judges remained quiet, at least two of the seven expressed sympathy for the school districts’ position and fairly blatant disdain for the Division of Human Rights. Hopefully, however, even these judges will come to see the absurdity and injustice of a ruling that would exclude Ms. Kearney and the vast majority of other young New Yorkers from the state’s most important student civil-rights protections.


[1] New York Human Rights Law § 296(4) is codified in New York Executive Law § 296(4).

[3] The statute does not expressly include “gender identity,” though efforts to amend the HRL along those lines are underway. Even without “gender identity” specifically mentioned, the statute provides important protections to transgender and gender non-conforming students as well, in part because they are so frequently the victims of harassment based on sex.

[4] See infra note 9.

[5] Parts of this post’s legal analysis draw on language from the briefs I co-authored while at Lambda Legal. See infra note 9.

[6] The other case, from North Syracuse, presents similar legal issues but is at a much earlier stage, and I do not discuss it in any depth here. The case has reached the Court of Appeals because the school district is attempting to stop the Division from proceeding with a hearing.

[7] A full description of the Division’s findings, as confirmed by the Commissioner of Human Rights, is available here.

[8] Rachel Stern, ICSD to appeal ruling in Kearney case, Ithaca Journal (July 28, 2011).

[9] These organizations include the Gay, Lesbian and Straight Education Network, Empire State Pride Agenda, the New York City Gay and Lesbian Anti-Violence Project, the Ithaca Lesbian Gay Bisexual Transgender Task Force, Parents, Families, and Friends of Lesbians and Gays, and Lambda Legal itself. Lambda Legal’s recent brief presents (and builds on) arguments that Lambda Legal had advanced in earlier briefs and letters on behalf of similar coalitions of organizations in similar cases. These earlier filings, which I co-authored, include a brief (available here) to the Second Department in East Meadow Union Free School District v. New York Division of Human Rights, 886 N.Y.S.2d 211 (2d Dep’t 2009); a brief (available here) and a supplemental letter brief (available here) to the Third Department in Newfield Central School District v. New York Division of Human Rights, 888 N.Y.S.2d 244 (3d Dep’t 2009); and a brief in Pratt v. Indian River Central School District, 803 F. Supp. 2d 135 (N.D.N.Y. 2011).

[10] The Division of Human Rights’ brief in the Ithaca matter is available here. The Kearney family’s attorney also filed a brief, available here.

[11] Lambda Legal represents the plaintiffs in the Indian River case. I worked on the case before coming to Columbia Law School. See Pratt, 803 F. Supp. 2d 135.

[12] The language limiting the law to tax-exempt, nonreligious institutions evidently restricts the number of private schools falling within the law’s scope, but it does not exclude any public school districts, all of which are tax-exempt and, of course, nonreligious. Unsurprisingly, public school districts fighting the HRL have not attempted to disavow their tax-exempt status; nor have they claimed a religious affiliation.

[13] Section 66(6) incorporates the definition of “education corporation” set forth in Section 216-a(1) of the Education Law. That provision, in turn, defines “education corporation” to include all “corporation[s] . . . formed under this chapter.” The words “this chapter” refer to the Education Law. See N.Y. Educ. Law § 1 (“This chapter shall be known as the ‘Education Law.’”).

[14] N.Y. Const. Art. 10, § 5; Gen. Constr. Law § 66(2)

[15] See, e.g., N.Y. Educ. Law §§ 1501, 1504, 1522; see also Pocantico Home & Land Co. v. Union Free Sch. Dist. of the Tarrytowns, 20 A.D.3d 458, 461 (2d Dep’t 2005) (“School districts in this State are creatures of statute, which can only be formed, dissolved, or altered in accordance with . . . the Education Law.”)

[16] Bd. of Higher Educ. of City of N.Y. v. Carter, 16 A.D.2d 443, 447 (1st Dep’t 1962) (citation and internal quotation marks omitted), aff’d as modified on other grounds, 14 N.Y.2d 138 (1964).

[17] HRL § 290(3).

[18] See Cahill v. Rosa, 89 N.Y.2d 14, 20 (1996).

[19] This argument, described as an “alternative” argument here, is in fact one of the principal arguments advanced by the Division of Human Rights. Unlike Lambda Legal, the Division has chosen not to argue in the recent cases that the definition of “education corporation” in General Construction Law Section 66(6) encompasses public schools. While agreeing with the Division’s ultimate conclusion on the HRL’s scope, Lambda Legal has expressed disagreement with the Division on this aspect of the analysis. A description of the disagreement appears in footnote 8 of Lambda Legal’s most recent brief on the issue. The Division has not been entirely consistent on the Section 66(6) issue: An earlier Division brief in a similar case adopted the reading of Section 66(6) that Lambda Legal has consistently advanced, but the Division’s most recent brief takes a different approach.

[20] Lambda Legal develops this argument on pages 17-18 of the brief available here.

Could the legislature have made Section 296(4) even easier to understand by simply including the word “public school district”? Probably. But it is important to remember that the legislature sought language that included both public and certain private schools. In any event, it is irrelevant that the legislature might have expressed itself slightly differently to make things (even) easier for the reader. The only relevant issue is the meaning of the language actually chosen—and that language plainly encompasses public schools. Cf. Roslyn Union Free School Dist. v. Barkan, 16 N.Y.3d 643, 649-50 (2011).

[21] For a more complete criticism of this aspect of the court’s decision, see pages 19-20 of Lambda Legal’s most recent brief on the issue, available here.

[22] This section of the Attorney General’s argument, appearing on pages 29-30 of his brief, quotes Matter of Freudenthal v. County of Nassau, 99 N.Y.2d 285, 291 (2003).

[23] HRL § 290; see also id. § 291.


4 comments

  1. NY Court of Appeals to Rule on School Districts’ Efforts to Deny Students the Protections of the State Human Rights Law http://t.co/9qEEtvco

  2. I blogged for the first time. And now I'm tweeting about blogging, again for the first time. http://t.co/SLqNWoqa

  3. Blogged for the first time.Tried tweeting about it, but that didn't go as well. Trying again. Happy weekend. http://t.co/PzboYza7

  4. Blogged for the first time.Tried tweeting about it, but that didn't go as well. Trying again. Happy weekend. http://t.co/PzboYza7

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