NY Upstate Appeals Court Finds Public Schools Are Subject to Human Rights Law

This may sound like an arcane issue, but actually it is quite significant because of the anomalies and peculiarities of New York State Law.  Does the state's Human Rights Law (Executive Law Section 296) apply to the public schools (K-12), so that a student who has been subjected to bullying that their school refuses to address effectively can file a claim with the State Division of Human Rights and seek monetary and injunctive relief if the bullying is due to one of the characteristics listed in the Human Rights Law? 

In an opinion announced on June 30, Ithaca City School District v. New York State Division of Human Rights, No. 510106, a five-judge panel of the Appellate Division, 3rd Dept., ruled by a vote of 4-1 that the Ithaca School District is covered by the law, and affirmed the Divison's award of damages and injunctive relief on behalf of an African-American student who had been frequently harassed by white students on the school bus.  The ruling is notable because it opens up a split of authority on the jurisdictional question, disagreeing with the 2nd Department's ruling in East Meadow Union Free School District v. New York State Division of Human Rights, 65 App.Div.3d 1342 (2009), leave to appeal denied, 14 N.Y.3d 710 (2010). 

The Human Rights Law is codified in the New York Executive Law.  Executive Law Section 296(4) makes it "an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law to. . . permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status."


In this case, Justice Robert C. Mulvey of the Tompkins County Supreme Court had ruled in favor of the School District, following the 2nd Department precedent.  (Under New York practice, an uncontradicted ruling by any Department of the Appellate Division is binding on all the trial courts in the state.)  In reversing, the majority of the Appellate Division panel, in an opinion by Justice Leslie E. Stein, directly rejected the reasoning of the 2nd Department, which had relied on the state's General Construction Law to find that the term "education corporation or association" — a term not defined in the Human Rights Law — does not include the state's primary and secondary public schools.  The 2nd Department premised this ruling on the contention that school districts are "municipal corporations," not "education corporations," and that the terms "education corporations" and "education associations" was meant by the legislature to refer to private schools and institutions of higher education (colleges, universities, professional schools). 

"Even assuming, arguendo, that the tortured legislative history underlying General Construction Law sections 65 and 66 – as well as various other statutes – supports petitioner's argument that the definitions of 'education corporation' and 'education association' therein do not embrace public school districts," wrote Justice Stein, "the fact remains that this does not, as petitioner contends, necessarily mean that these definitions are applicable to Executive Law Section 296(4).  The approach advocated by petitioner completely ignores General Construction Law Section 110, which provides that the General Construction Law is not intended to supply a missing definition in a particular statute when the 'general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by [the General Construction Law.]'"

?Justice Stein pointed out that the Human Rights Law is a remedial statute that "must be liberally construed to accomplish its beneficial purposes – one of which is to eliminate discrimination in 'educational institutions' (Executive Law sections 290, 300) – 'and to spread its beneficial results as widely as possible,'" citing to a recent decision by the state's highest court, Rizzo v. New York State Division of Housing and Community Renewal, 6 N.Y.3d 104 (2005).

?Justice Stein also observed that the school district's contention would require concluding that the legislature "intended to provide its protection against discrimination only to the relatively minuscule percentage of students whose families can afford to send them to private, non-religious schools, relegating public school students to other more onerous and/or less comprehensive remedies."  The court found that this would be "clearly contrary to the express purpose of the Human Rights Law."

?The sole dissenting judge, Justice Robert S. Rose, agreed with the 2nd Department, arguing that it seemed clear from the wording that the Human Rights Law provisions were intended to apply to post-secondary education and not to the state's public primary and secondary schools.

?On the merits of the case, the court found that the Division's finding of a violation was sustained on the record and upheld the award of $200,000 damages to the student and the grant of injunctive relief against the school district, requiring it to take various steps to deal with the harassment problem.  The court did cut down the amount of damages awarded to the student's mother, from $200,000 to $50,000, finding that the record concerning emotional distress she suffered was not sufficient to sustain the larger amount.

?Michael K. Swirsky of the State Division of Human Rights argued the case for the Division, with the Ithaca attorney Raymond M. Schlather (of the firm Schlather, Stumbar, Parks & Salk) appearing for the complainants, Amelia Kearney and her daughter.  Cecilia Chang of the the Attorney General's office supported the Division's position as amicus curiae, as did Lambda Legal on behalf of Advocates of Children of New York and other organizations.  Jonathan B. Fellows of the Syracuse law firm Bond, Schoeneck & King, represented the school district.

?One might ask why there is no reference in the court's decision to the Dignity for All Students Act (DASA), enacted last year to deal with the problem of bullying in the public schools.  The answer is twofold: first, DASA was not in effect at the time of the incidents that gave rise to this case (2005-2006).  Second, and perhaps more importantly, DASA does not authorise student victims of bullying to file lawsuits for damages and injunctive relief.  DASA imposes obligations on school districts to adopt policies to deal with bullying, to institute training programs, and to facilitate mechanisms to respond, as well as to report their actions to the State Education Department, but it does not focus on individual claims — perhaps because the legislature could believe that students with individual complaints could resort to the provisions of the Human Rights Law for relief. DASA was intended to be proactive in requiring school districts to address the problem, and it would be up to state education authorities, presumably acting through the Attorney General, to take action against school districts that fail to fulfil the requirements of DASA.

?Now that there is a split of authority between the Departments, trial courts in the 3rd Department will be bound by this ruling, while courts in the 2nd Department will be bound by that Department's ruling (and, in a footnote, Justice Rose points out that the Division does not accept complaints against public school districts from within the boundaries of the 2nd Department at present due to that ruling). The trial courts in the 1st and 4th Departments will be free to choose which precedent to follow for now, and presumably the Division will continue to accept complaints coming from those parts of the state.  If the City of Ithaca seeks review in the Court of Appeals, one suspects review would be granted in order to reconcile the difference and adopt a unitary approach for the state.  Such would certainly be advisable.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.