In a May 26 post on this blog, Columbia Law School Associate-in-Law Michael Kavey criticized the efforts of several New York school districts to dismantle critical civil rights protections for their students. The districts, presumably seeking to avoid financial liability, had been claiming in various cases across the state that the broad antidiscrimination and antiharassment safeguards for students under the New York Human Rights Law only protected students in private—not public—schools. Intermediate appellate courts had split on the issue, which the Court of Appeals then agreed to resolve in cases involving the North Syracuse Central School District and the Ithaca City School District. The court has now issued its decision, dividing 4-3. Michael discusses the June 12 ruling here:
In a devastating ruling for millions of young people in New York, the state’s highest court has held that the antidiscrimination and antiharassment protections for students under the New York Human Rights Law (HRL) extend exclusively to students in private—not public—schools. The decision converts HRL Section 296(4)—one of the broadest, most inclusive, and most powerful state-level student-civil-rights measures in the nation—into a legal remedy available only to a narrow class of privileged individuals; namely, those who can afford private education. The ruling marks a painful setback for civil rights in New York, particularly for the rights of lesbian, gay and bisexual (LGB) youth; this is because HRL Section 296(4) is the only civil rights measure under New York or federal law to specifically authorize students to file suit when school officials permit harassment based on sexual orientation. The court’s decision also contributes to racial and economic injustice, in that public school students, who are more likely to be racial minorities and more likely to come from lower-income families than their private-school counterparts, can no longer access the uniquely affordable procedures and resources available to those who file HRL discrimination complaints with the State Division of Human Rights. Though the HRL continues to declare that “[t]he opportunity to obtain education . . . without discrimination” is a “civil right,” a narrow majority of the Court of Appeals has now ensured that the statute does absolutely nothing to safeguard this purported “civil right” for the overwhelming majority of the state’s students—including the most vulnerable among them.
How did this happen? It remains something of a mystery, as neither the law nor policy considerations support the result.
My May 26 post set out the basic legal issues in detail and explained the factual background of the case involving the Ithaca City School district (one of the two cases resolved by the court’s June 12 opinion). While I won’t repeat all the details here, the basic legal dispute is as follows: Section 296(4) of the HRL prohibits tax-exempt, nonreligious “education corporation[s] [and] association[s]” from discriminating against or “permit[ting] 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, the dispute over whether they are subject to Section 296(4) has centered on whether they are “education corporation[s] or association[s].” Various school districts around the state, including the district in Ithaca, have argued that they are not, and that only private school students may invoke HRL Section 296(4)’s protections.
This issue should be easy to resolve—particularly with respect to whether school districts are “education corporation[s].” According to the state’s General Construction Law (GCL), which (subject to some exceptions) provides uniform definitions of common terms appearing elsewhere in state statutes, the term “education corporation” includes any corporation “formed under” the state’s Education Law. Because the state Constitution and several state statutes define school districts as “corporations,” and because school districts are indisputably “formed under” the Education Law, they plainly meet the GCL’s definition of “education corporation.” The analysis should end there.
But even if the GCL definition contained some sort of ambiguity, other considerations reinforce that public school districts are “education corporation[s]” subject to Section 296(4). HRL Section 300, for instance, requires that courts “liberally construe” the HRL’s provisions to effectuate the statute’s purposes, which include “eliminat[ing] discrimination by the state or any agency or subdivision of the state,” and “eliminat[ing] and prevent[ing] discrimination in . . . educational institutions.” The rule of liberal construction compels, or at least strongly reinforces, the conclusion that, as applied in the HRL context, the GCL definition of “education corporation” encompasses public schools. A more thorough exploration of these arguments appears, with additional sources and citations, in my May 26 post.
Given that the Court of Appeals received extensive briefing on these arguments—plus several alternative arguments—from parties to the Ithaca dispute, from the Attorney General (representing the State of New York, which appeared as amicus curiae), and from Lambda Legal (which represented a diverse coalition of twelve civil rights groups as amici curiae), one might reasonably have expected the Court of Appeals to address the GCL definition of “education corporation” noted above. One might also have expected HRL Section 300 and its rule of liberal construction to play some significant role in the analysis, as earlier Court of Appeals cases had repeatedly emphasized the centrality of that provision and its liberal-construction rule in interpreting the HRL’s protections. In one widely cited case, for example, the court explained that “[a]nalysis starts by recognizing that the provisions of the Human Rights Law must be liberally construed to accomplish the purposes of the statute.” And given that HRL Section 300 directs courts to consider the purposes of the statute, one might have reasonably expected the Court of Appeals to discuss those purposes and to assess whether its holding would advance or frustrate them.
Sadly, the Court of Appeals’ decision barely pays lip service to these principles and provisions. To begin, the court effectively ignores the GCL: “We need not address whether the GCL is applicable,” the court explains, “because there is [sic] independent basis, supported by legislative history, for our conclusion that a public school district is not an ‘education corporation or association.’” The court is correct that it need not strictly follow the GCL definitions: Section 110 of the GCL renders GCL definitions inapplicable where the “general object” of a statute (here, the HRL) “or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended.” The Court of Appeals’ approach remains flawed, however, because its opinion refuses to give any weight to the “general object” of the HRL and fails to consider the context of the language as it currently exists within the HRL. To the extent the court incorporates “other provisions of law” into its analysis, moreover, it relies on Tax Law provisions that were enacted many years before the legislature enacted the HRL; these provisions have since been amended and transferred to other statutes, or repealed altogether, as explained below.
Having disregarded the GCL definition without a reasonable basis, the court’s decision proceeds to reject reliance on the rule of liberal construction and declines to consider the HRL’s general purposes in any meaningful way. Instead, the majority suggests—vaguely, and without citation or explanation—that notwithstanding HRL Section 300’s express mandate of liberal construction, it would be inappropriate for the court to engage in such construction or to consider the HRL’s purposes in the absence of an “underlying directive in the statute.” It is entirely unclear what the court means here. The rule that courts liberally construe the HRL’s provisions has always stood on its own: It has not, until now, required some undefined, additional, “underlying directive in the statute.”
With the straightforward statutory language and longstanding interpretive principles tossed aside, the majority begins the longest and most perplexing section of its analysis, which consists of a dense, convoluted, and deeply flawed exposition of the legislative history of various provisions—most of which pre-date the HRL. The court’s analysis, for instance, features provisions of an 1896 Tax Law that no longer exists, as well as a 1935 Tax Law enactment that denied exemptions to certain education corporations and associations that discriminated on the basis of race, color or religion. In fairness to the court, this antidiscrimination language from the 1935 enactment is not entirely disconnected from the later-enacted HRL: The legislature transferred the 1935 antidiscrimination language to the HRL in the late 1950s, and the newly transferred provision evolved gradually into the Section 296(4) that we know today. But even assuming, as the court claims, that the 1935 enactment applied only to private entities, this does not mean that Section 296(4) is similarly limited. The court’s assumption that the 1935 tax enactment and the modern-day HRL Section 296(4) have an identical scope ignores the fact that the legislature, upon transferring the 1935 tax provision to the HRL, amended the provision to clarify its application to public schools; the Division of Human Rights and the Attorney General explain this point in detail in their briefs. By incorporating the provision into the HRL, moreover, the legislature transformed what was once a tax-exemption measure into an independent human rights protection enforceable by the Division of Human Rights and subject to the HRL’s rule of liberal construction (which, again, the Court of Appeals’ decision essentially ignores).
The Court of Appeals, like the school districts whose position it adopts, argues toward the end of its opinion that denying the HRL’s protections to public school students does not leave them without remedies for discrimination and harassment. But as I noted in my earlier post, and as the Attorney General and Lambda Legal emphasized in their briefs, none of the supposed alternative remedies provide nearly the same degree of protection as the HRL. The Court of Appeals’ focus on the recently enacted Dignity for All Students Act (DASA) as an example of an alternative remedy is particularly problematic, in part because DASA does not even take effect until next month, July 2012—that is, over seven years after the events giving rise to the Ithaca case. Perhaps more importantly, the legislature explicitly instructed that “nothing in [DASA] shall . . . [p]reclude or limit any right or cause of action provided under any local, state or federal ordinance, law or regulation.” By relying on DASA to help justify its curtailment of the HRL’s scope, the court’s decision violates this provision. To be clear, DASA does provide important safeguards for public school students, and it enumerates both sexual orientation and gender identity as prohibited bases of discrimination. The nature and force of its enforcement mechanisms remain unclear, however; it does not, for instance, expressly provide access to the Division of Human Rights; nor does it expressly authorize a cause of action. As important as DASA is, therefore, it is not a complete substitute for HRL Section 296(4).
Fortunately, despite the Court of Appeals’ dreadful ruling, New York’s public school students, including its lesbian, gay, bisexual and transgender students, do enjoy some important protections from discrimination and discriminatory harassment at school. Federal courts, for instance, have increasingly recognized statutory and constitutional claims brought by LGBT plaintiffs against public actors—such as school officials—for discrimination and harassment based on sexual orientation and gender identity. Federal provisions, however, often impose a difficult standard for student harassment claims; federal law also provides inadequate guidance to both school officials and courts because it does not expressly bar schools from permitting “harassment” and its education provisions lack specific reference to “sexual orientation” and several other traits covered by HRL Section 296(4).
For these and many other reasons—addressed not only in my posts, but also in several of the briefs to which the posts link—HRL Section 296(4)’s protections remain unique. Advocates for safe schools and equal educational opportunity in New York must speak up to expose the injustice and absurdity of the Court of Appeals’ ruling limiting those protections to private school students; they must also redouble their efforts to ensure that New York law provides comprehensive, accessible, affordable, and meaningfully enforceable antidiscrimination and antiharassment safeguards for the state’s public school students
Comments are welcome at: firstname.lastname@example.org
[i] N. Syracuse Cent. Sch. Dist. v. N.Y. State Div. of Human Rights, — N.E.2d —-, 2012 WL 2092954 (N.Y. June 12, 2012). The HRL is codified in the New York Executive Law. See N.Y. Exec. Law §§ 290 et seq.
[ii] HRL § 291(2).
[iii] 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).
[iv] HRL § 290(3).
[v] The twelve civil rights groups were Advocates for Children of New York, Inc., the Anti-Defamation League, the Asian American Legal Defense and Education Fund, Disability Advocates, Inc., the Empire State Pride Agenda, the Gay, Lesbian & Straight Education Network, the Ithaca Lesbian Gay Bisexual Transgender Task Force, Lambda Legal, the NAACP Legal Defense and Educational Fund, Inc., the New York City Gay and Lesbian Anti-Violence Project, Inc., the New York Civil Liberties Union, and Parents, Families and Friends of Lesbians and Gays. As described in note 9 of the May 26 post, I was involved in developing the arguments in Lambda Legal’s brief.
[vi] Cahill v. Rosa, 674 N.E.2d 274, 276 (N.Y. 1996).
[viii] See, for example, the text accompanying note 22 in the May 26 post.
[ix] See, e.g., Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 150-53 (N.D.N.Y. 2011); cf. Glenn v. Brumby, 663 F.3d 1312, 1316-1320 (11th Cir. 2011).