New York School Districts Unleash Attack on Students’ Rights
By Michael Kavey, Arthur Liman Public Interest Fellow
Published 09/25/08
In a disturbing development threatening the safety of LGBTQ youth throughout New York State, two school districts have unleashed a sweeping attack on the New York Human Rights Law (NYHRL), seeking to establish through litigation that the NYHRL's antidiscrimination and antiharassment protections for youth extend only to students in private education, and not to students educated in the state's own schools. The stakes for LGBTQ youth are high; while the current cases do not involve antigay discrimination, a victory for the school districts would eradicate the only protection available in New York to specifically address by statute "harassment [based on] sexual orientation" in public schools.
As part of its ongoing advocacy to safeguard these civil rights protections, Lambda Legal submitted an amicus brief this month in a New York appellate court on behalf of a large coalition of civil rights groups, including the NAACP Legal Defense and Educational Fund, the Anti–Defamation League, Advocates for Children of New York, the New York Civil Liberties Union, Disability Advocates, the Empire State Pride Agenda and PFLAG, urging the court to reject a challenge to the law.
Attorneys at Lambda Legal first encountered an attack on the NYHRL's student protections in a matter involving the Ithaca City School District in the fall of 2007. A middle school student in Ithaca alleged that she was the victim of relentless racial discrimination and harassment, and that the school district allowed the mistreatment to continue. In a complaint brought on her behalf, the New York Division of Human Rights relied on NYHRL § 296(4), which prohibits tax-exempt and nonsectarian "education corporation[s] [and] association[s]" from discriminating against or "permit[ting] the harassment of any student" based on race, religion, sex, disability, sexual orientation or other factors. Rather than simply defending itself on the merits, the school district sought to have the case thrown out, arguing that a public school district could not be considered an "education corporation" or an "education association" for purposes of NYHRL § 296(4).
Fortunately, after receiving a letter from Lambda Legal in October 2007 outlining the flaws in the district's position and calling its attention to the potentially devastating consequences for the state's LGBTQ youth, the school board in Ithaca unanimously voted to rescind the legal challenge, allowing the case to proceed on the merits. One school board member publicly thanked Lambda Legal, saying "[the letter] allowed many of us to look at this issue differently."
Two other school districts, however, appear determined to wipe out the NYHRL's protections for students in public schools. In upstate New York, the Newfield Central School District responded to a complaint of sex discrimination by pressing forward with the same strategy abandoned in the Ithaca matter, claiming that the NYHRL provides no protection to students in public schools. A state trial level judge sided with the school district and barred the Division of Human Rights from even considering the allegations. An appeal has just begun before the New York Supreme Court Appellate Division, Third Department. Lambda Legal, which publicly criticized the Newfield district's dangerous strategy in a letter to its board of education, is closely tracking the appeal.
This month, Lambda Legal submitted an amicus brief — joined by the broad coalition of civil rights groups noted above — in yet another case to present this issue. In an appeal to the Supreme Court Appellate Division, Second Department, the East Meadow Union Free School District is challenging a ruling of the New York Human Rights Commissioner, which found that the school district's policy restricting the use of guide dogs violates NYHRL § 296(4)'s protections for disabled students. Like the schools in Ithaca and Newfield, the East Meadow school district has gone beyond a mere defense on the merits, arguing that school districts are neither "education corporation[s] [nor] association[s]," and that NYHRL § 296(4) thus provides no protection to public school students.
In addition to wiping out the only civil rights protection for New York students that expressly addresses antigay harassment, the radical strategy of the Newfield and East Meadow school districts would eliminate one of the most effective and explicit protections for students against discrimination and harassment based on race, sex, religion, disability and other factors. A victory for the school districts on this issue would also place beyond the reach of public school students the remedies and procedural benefits available through the state Division of Human Rights. The Division provides a uniquely affordable and accessible forum for resolving disputes involving the NYHRL, in part because students alleging a violation of the NYHRL can proceed before the Division without retaining an attorney and without paying filing fees. The Division also offers flexible procedures and remedies unavailable through traditional litigation. Given that the schools' strategy would place these procedures and remedies beyond the reach of public school students who face any kind of discrimination, it is no surprise that so many civil rights groups joined Lambda Legal's brief in the East Meadow case.
While we should not underestimate the dangers presented by these school district challenges — especially because one lower court has already accepted their position and the Court of Appeals has never ruled on the issue — Lambda Legal and its allies have the stronger of the legal arguments. The school districts insist without a coherent explanation that the term "education corporation or association" as used in NYHRL § 296(4) necessarily refers only to private nonprofit organizations, but the statutes and the case law do not favor that position. The term "association" is applied "broad[ly]" by the New York Court of Appeals "to include a wide assortment of differing organizational structures," and the term "education corporation" is specifically defined by statute to include school districts. Under the New York General Construction Law, which generally applies to all New York statutes, the term "education corporation" includes all corporations "formed under" the Education Law. Because school districts are defined by both statute and the state constitution as "corporations," and because they are necessarily "formed under" the Education Law, they are clearly "education corporations."
The only state appellate division to squarely address the issue has ruled that public education institutions are "education corporations" under the NYHRL, and federal courts in the Northern, Eastern, and Southern Districts of New York have allowed student claims under § 296(4) to proceed against public educational institutions and their employees.
The NYHRL specifically provides, moreover, that its provision must be "construed liberally" 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 NYHRL also declares the "opportunity to obtain education [...] without discrimination" to be a "civil right." As Lambda Legal and its allies argued in the brief to the Second Department, the statute's extremely strong policy against state-sponsored discrimination, and its special concern with equal educational opportunity — all viewed in light of the statutory mandate of liberal construction — make it preposterous to argue that courts should limit the law's protections to private school students only, while leaving students in the state's own schools entirely without recourse to the Division of Human Rights.
The weaknesses in the school districts' position have not persuaded them to abandon their radical legal strategy. Until they do, Lambda Legal remains vigilant to protect antidiscrimination and antiharassment provisions that are so crucial to the state's schoolchildren and especially to LGBTQ youth.
