*1 WALKER, MON HINFEY, FOR JACQUELYN PATRICIA N.O.W., COMPLAINANTS-RESPON MOUTH COUNTY DENTS, OF EDUCATION BOARD REGIONAL v. MATAWAN AL., RESPONDENTS, OF THE AND DIRECTOR E T RIGHTS, APPELLANT. ON CIVIL DIVISION August January Argued 1978 Decided *3 Ann, General, Attorney argued Burgess, Deputy Mary Ms. (Mr. Hyland, Attorney F. William appellant for cause the Skillman, Stephen Mr. attorney; Jersey, New General Ms. General, counsel; Burgess, on Assistant brief). Ms. Nadine Taub cause for argued complainants- (Ms. Friedland, Joan
respondents the New member of bar, counsel; Mexico Ms. on Annamay Sheppard, T.
brief).
Ms. Babcox Deborah Ms. Naomi Eber submitted curiae, brief on behalf amicus Liberties American Civil Union of New Jersey.
The court was opinion delivered unusual raised important issues Handler, this concern the and statu- appeal nature of tory of the Division Civil the Com- powers Eights missioner of the of Education over Department sex study discrimination in charging courses academic and curricula in the public schools. In legal resolving ultimate problems there must be presented, answered the question as to administrative these agencies, Education, Division on Eights Civil the Commissioner of each with a jurisdictional solid substantial claim upon matter, should adjudicate the complaints discrimination lodged action. Patricia Walker
Complainants Hinfey and Jacquelyn for the Monmouth Women County National Organization filed with the Division on Civil 1974 a Eights November of Mata- preliminary complaint charging Borough President, wan, the Council the Matawan Eegional Borough Board of Education and Superintendent of Schools *4 employment discriminated in and on accommodations sex, the a age basis of and marital status. Later formal in more filed complaint respondents detail was charging and A is specific recounting docketed. of these allegations in the conflicts helpful understanding jurisdictional which they have spawned.
One count dealt with and patterns employment practices to within relating the sports school high and middle schools of Matawan. More specifically, count that alleged from certain and
females were excluded classes sports there confined certain “miscellaneous that sports”; were to in limited to separate sports boys were other either categories boys’ or and that more was funneled into the girls money in reflected to the coaches sports, higher stipends paid or that with to boy-dominated the boys’ sports; respect schools, only middle not in the participate do girls available, for sports that three coaches program only boys’ a various women and that there is program were sports that for at to gymnasium regional high superior It further Board Education girls. was alleged to failed action discrimina- any take “combating corrective Matawan tion in Another count directed at sports.” of cheer- Borough of Recreation Commission complained football boys’ classes for and that leading girls only money.” has “more time and program planning, extensive A “content” of gymnastic further stated charge anof and courses, part for and separate boys girls were Board Matawan Regional enrichment program are not Education, stereotypes sex “tends reinforce related sex gymnastics.” Educa- Board of
A count against Regional the Matawan and practices tion asserted discriminatory “employment administration, benefits”, wit, male domination in disability aas maternity ostensible failure to leave recognize a justifying condition to childbirth or relating paternity unre- a treatment, age policy similar retirement mandatory years and entitlement based .ability lated pension count the complaint service or Subsumed under this age. case: in this jurisdictional imbroglio that has triggered Sex-segregated in- to curriculum courses and conditions related through lineups kindergarten separate boys’ girls’ and from the clude throughout girls grades; separate boys higher all courses boys girls levels; portray women textbooks that men portray library sex-stereotyped manner; men and books that sex-stereotyped women manner. *5 Erom the end of such February through forty in charging sexually discriminatory practices different In school were filed with Division. systems the 1973 the April Division, Director of Deputy addressing the the whether one question of these best complaints "should processed by the the Division State Department of Education”, in wrote the that action that complainant the was Division jurisdiction. By October retaining a number of these cases had progressed beyond finding probable cause to the entry consent the signed by orders districts and the Eive were Division. cases ready public hearings and another five were conciliation. awaiting
As as one the early January 1975, boards respondent of education moved to dismiss the complaint pending against the over on the Division ground jurisdiction lacked claims discrimination in curricula. alleging school This motion was the denied Director of the Division 1975. The February General’s officethen advised Attorney not Division these the concilia- prosecute cases beyond tion until an stage opinion was rendered on this jurisdic- tional an formally Director such question. requested on Formal opinion 1975, Attorney October General No. Opinion 28-1975 was issued which the General concluded the Division has no over complaints discrimination in alleging curricula and that jurisdiction of Commissioner Education was exclusive. regard Accordingly Director informed to the Matawan parties complaint that the case had been closed and file transferred an the Director Department By Education. order severed and retained over that of the com- part unlawful plaint alleging employment practices.
The dismissal and transfer of the Matawan complaint well as the other were thirty-nine dismissed cases appealed 1976 to court Appellate Division. That January taken reversed the action at administrative level and held that both the Division and Commissioner of
Education, jurisdiction have over complaints concurrent of school sex in the area public discrimination alleging filed curricula, already but with to respect complaints it was it, and mandatory was jurisdiction the of the Division 201 Super. N. J. to them. required proceed upon the court’s that A observed (1977). opinion concurring competitors result the as leaves Division and Commissioner remedy the that in the but areas of curriculum management, to the left best be this should “anomalous situation” Director reversal, the Id. this at >211-212. Legislature. Upon General, filed Division, Attorney the the through J. 264 which was petition for certification granted. (1977). was Division
We have that the Appellate concluded Rights that the Division on Civil correct in determining jurisdic have concurrent Department Education sex discrimina to acts of complaints tion entertain charging That curricula. study tion in school courses public erred, however, jurisdiction court that ruling in effect that had mandatory, Division was respect those upon duty proceed to nontransferaible it. that filed with We hold actually discrimination charges matter of involving discrimination be handled' study should curricula courses public school such complaints, Education and that by the Commissioner of Rights, in the Division on Civil filed though originally Education. should be the Commissioner transferred below is therefore reversed. The judgment General, opinion The expressing jurisdiction has exclusive Commissioner Education involving hear discrimination controversies public of the Division curriculum, reasoned the Law statutorily Against on Civil was limited Rights “specific” A. 10:5-1 et J. S. Discrimination. sea.. that, acts of discrimination in contrast, the Commis- sioner’s schools, wide over educa- statutory authority tional controversies, and school as policy well acts of discrimination L. 1973, to in c. specifically referred 18A:36-20, was inclusive of the content public school curriculum Por reason offerings. Attorney General believed that the Division on Civil Rights had no extant jurisdiction to deal with acts discriminatory and practices relating study. school courses of are questions posed by analysis thus framed whether matter statutory subject Division on Civil Rights so constricted as to exclude *7 invidious in and, discrimination school curricula if public limited, is not so whether the of authority -the Division over such when complaints, the statu- juxtaposed pervasive tory powers of the Commissioner of Education over public school been or policy, has should be the displaced by juris- diction of the Commissioner.
It well is to start with Law Discrimination, the Against 10:5-l et seq. The evolution of that law into its state has present been told times. That is many history one of jurisdiction in the on burgeoning Division Civil the Rights continued of remedial its strengthening A brief powers. of that recapitulation progression, though reiterative to some degree, underscores the irrefutable con- clusion that Division on the statutory Civil has Rights jurisdiction to entertain sex relat- discrimination complaints school curricula. ing
The Division on Civil Law Rights originated L. Discrimination, 1945, of Against c. 169. Section six this Act created the then Division Discrimination against within the State of Department Education. The Division was given power and eliminate discrimination prevent color, of employment race, creed, on basis national or origin ancestry, “and to take other actions dis- against crimination,” and was granted “general jurisdiction and authority for such concern purposes.” special of
522 evi- was as employment, Discrimination
1945 Law Against opportunity that “the four, which declared section denced * * * * * * discrimination without employment obtain a civil to be right.” and declared recognized was amended 1945 Act This soon shifted. The focus over 11, c. extend the Division’s 1949, L. 2 to § ad accommodations, “all the discrimination with respect of ac any of facilities, place and privileges vantages, * ** secondary commodation”, primary “any including * * * * * * * * * under school, high supervision of Education, or the Commissioner the State Board This Id. 3(j). Jersey.” New Education the State § in the increased was as well of concern reflected broadening 1949, 11, In the 5(h). L. c. the Division. authority granted § next and enforcement powers decade area of significantly Division were most augmented, L. c. 198, 1957, L. 1954, c. 1 .(public housing); housing. § c. 66, 1961, 106, L. housing); (publicly-assisted § § In the Division (some housing). privately-financed Discrimination was renamed the Division Against thereafter, L. 1961, Civil c. shortly Rights, § enforcement over educa symbolic greater emphasis upon In suasion, Blumrosen, tion and “Antidiscrimination Laws Bulgers Action In New A Jersey: Law-Sociology Study”, L. Bev. 205-207 was transferred the Division (1965), from Law Education to the Department Department *8 and Public under the of Safety supervisory authority General the Director of the Division on Civil and 1963, 40, L. 2. The reloca Rights. years c. this following § of and steady tion witnessed a widening have 40, 1963, L. c. of the Division. 7 em powers (Division § of public powered accept by designated ; 80, L. c. 9 and ficials) 1970, marital status added (sex § 1972, c. 114, bases of L. 2 proscribed discrimination); § 35, L. 1975, c. 1 .(physical credit handicap); (loan § 1975, L. operators by law); real estate covered agencies c. 127, 4 action (affirmative program required in public §
523 L. 1977, 96, c. 1 bidding); Most recently, (nationality). § the Legislature the Law amended Discrimination Against cover private L. c. A 1977, 122, universities clubs. 1.§ steady stream of decisions jurisdictional chronicles Levitt & E.g., the Law Discrimination. growth Against Sons, Discrimination, Inc. 514, v. Division 31 N. J. Against 1257, S. 4 L. 418, dismissed 363 U. 80 S. Ct. Ed. 2d appeal Haridor N. 1515 Jones v. 37 J. 384 (1960); Realty Corp., Vesta, David v. 45 N. J. v. (1962); 301 Jackson (1965); Co., Builders, Concord N. 54 J. 113 New (1969); Jersey Blair, & Owners Ass’n v. J. Managers N. 330 60 (1972); Zahorian v. Russell Real Estate 62 N. J. Agency, Fitt 399 v. League National Women Little (1973); Organization for Baseball, 522, 127 N. J. aff’d Div.), 530-531 Super. (App. N. J. 67 320 (1974). are public
Public schools education assuredly covered the anti-discrimination law. Public schools under Commissioner of Education are of the supervision spe under Law cifically of accommodation” place public “[a] 10:5-5; N. J. S. A. Jenkins v. Mor Discrimination. Against Ed., and Bd. N. ris School Dist. J. 496 Twp. 58 of A is accommodation forbidden (1971). place public any discriminate its “ad offering invidiously * * * ** facilities S. vantages, privileges [or] Given the 10:5-4. responsibility public primary laws, education under the school almost educational say courses of tautological programs, study curricula form core of this responsibility. Cf. Ass’n, Ed. Dunellen Ed. Dunellen Bd. v. 64 J. 17, 26, Hence, 30 it is undeniable that a (1973). school cur public * * * riculum is one facilities “advantages, [or] school as privileges” place of accommoda Ed., Boards See Patterson v. 11 J. tion. N. Misc. 179 (Sup. L. 1933) aff’d o.b. 112 & A. Ct. (E. 1934); cf. v. Fraser Robin Dee 44 N. Camp, J. 480 Day (1965); see also Ed., Brown Board 347 U. S. S. Ct. L. Ed. We conclude (1954). therefore that the Division on *9 Law spirit letter and with the Civil consistent Rights, and Discrimination, have to hear jurisdiction does Against to courses pertaining discrimination adjudicate claims in the schools. public and curricula study
II Division on Civil The that follows is whether the inquiry over discrimina- in view of undoubted Rights, its be curricula, pre- tion in has been should public on the cluded from in this case entertaining to the given must or ground paramount effect should mat- Commissioner’s over this ter. of Education does the Commissioner
No one argues with to courses authority respect not total complete have and The schools. constitu- and curricula study VIII, 4, par. Const. Art. N. J. (1947), tional injunction, § maintenance 1, shall Legislature that the provide de- has system, of a and efficient” school support “thorough of Education. the Commissioner upon volved primarily 2, c. L. Public School Education ofAct § charge 18A:7A-2, constitutional implements J. S. to provide quality it is a governmental responsibility ef- thorough education and declares that “[a] school districts ficient education includes local system * * * curriculum, which decisions pertaining * * * a maximum of democratically made with schools are are consistent citizen involvement self-determination and standards." goals, guidelines (Emphasis Statewide Cahill, Robinson v. upholding added). (1976), the Public School Education Act constitutionality of the Commissioner to insure 1975, reviewed the powers an equal opportunity be offered an to receive that each pupil 459- constitutional Id. at that meets the standards. education that the has Legislature 460. The noted delegated Court and the Board of Education the respon- the Commissioner *10 to see sibility that the constitutional mandate is met: “[t]hey have a received vast of and them has been grant power upon a placed great and Id. at 461. ongoing responsibility.” There is with the re- lodged Commissioner encompassing over sponsibility education and broad to public authority all N. A. supervise schools, J. 8. 18A:4-23. public Specifically he has the to power minimum courses of and prescribe study to local require boards of education to submit of courses study N. J. 8. A. approval, 18A:4-25; of supervision curriculum is an function, A. explicit N. J. 8. delegated 18A:4-34. The regulations Commissioner his reflect sweeping supervisory authority over the wide field of public school curricula. E. N. J. A. g., C. eb N. 6:4-l.l J. A. C. seq.; 6:8-2.1 et N. A. seq.; J. O. 6':8-3.1 etb N. A. seq.; J. G. et 6:8-4.1 seq.; J. G. 6:8-6.1 seq. et The also Commissioner has fundamental and indis pensable over all disputes controversies aris under the school laws. N. J. S. A. ing 18A:6-9. In this the Court has “reaffirmed the respect repeatedly breadth great of v. the Commissioner’s Dunellen Bd. powers.” Ed. of Ass’n, Dunellen 23, Ed. 64 N. J. at Jenkins v. supra, citing Ed., Morris School Dist. and Bd. Twp. Elizabeth supra; Council, Bd. Ed. v. Elizabeth City 55 N. J. 505-506 Ed., Booker v. Bd. 45 N. (1970); J. 173- Plainfield Masiello, In re (1965); His (1958). 590, 601 over school law litigation obviously encom passes questions to academic courses of relating study Ass’n, curricula. Dunellen Bd. Ed. v. Dunellen See Ed. supra, 64 at It is also unquestioned that the Commissioner of Education only has not power decide controversies under the school law which entail invidious discrimination but indeed he an af practices, may regarded having Ed., Booker to do so. In Bd. duty firmative Plainfield supra, the Commissioner a finding had too narrow view own in the powers his area of school racial desegrega tion, Court held the Commissioner had independent for desegre an authority optimum plan fashion
supervening stric constitutional and consistent with gation and Bd. v. Morris School Dist. tures. In Jenkins Twp. Ed., the Commissioner’s view this Court found supra, again of his too cramped repeated principle powers his was authority rectify discrimination independent: thorough vigor policy history our State's favor of system against policy and efficient matched its are segregation racial Since discrimination and schools. explicit declaring legislation ex- 1881 there has been it unlawful * * any public *. In clude child from school because of his race *11 pains delegates took 1947 the provide, to the Constitutional Convention only person general denied not in that no shall be terms any person right, specific also that shall be civil but in terms no segregated public “religious principles, in because of his schools I, par. race, ancestry origin.” Implement- color, or national Art. opportunity legislation provides persons ing shall now have privi- accommodations, advantages, facilities, and to obtain “all the public accommodation”, including any public leges any place of of color, school, race, creed, national of “without discrimination because *’ 10:6-4, origin, ancestry” 5(i) N. A. etc. J. 8. *. 495-496], [58 J. at 18A:36-20, 380, as L. c. A. effective J. S. enacted .the reconfirms reinforces January clearly constitutional and responsibilities Commissioner’s in the public discrimination schools. over unlawful It provides: pupil public No in a school in this State shall be discriminated
against to, obtaining any advantages, privileges in or admission study by race, color, creed, or courses of' of the school reason of origin. sex or national by taken the Attorney is that position General' 18A:36-20, J.N. S. A. wide supplementing the existing, n authority in the Commissioner over matters, public to make his exclusive' operates with respect and, school curriculum discrimination public correlatively, the Division preempts subject over that matter. While it is history recognized legislative of N. J. A. S. 18A:36-20 is completely unenldghtening, result, General nevertheless asserts its intended displacement Commissioner, the Division can be fathomed as a matter of statutory interpretation.
N. J. A. :36-20, 18A S. argued, impliedly repeals is the Law directly is con Against Discrimination because it cerned more specific discrimination in schools is than the Law Against Discrimination, addresses gener which ally the varied problems of discrimination in numerous and e., contexts, i. accomoda housing, employment public In fact, tions. point the Commissioner’s antidiscrimina 18A:36-20, tion N. J. statutory authority under S. “in though quite explicit reference to its discrimination * * * * * * obtaining any study public] courses [a school”, is not more measurably upon focused matter than under N. is the of the Division authority S. A. law, earlier, 10:5—1 et also seq. That out pointed directed toward schools accom as places modation, -.5-4, A. 10 S. includes cur necessarily ricula among singular advantages privileges must be Patter offered schools without discrimination. See Ed., son v. Day Board Fraser v. Robin Dee supra; cf. Ed., Camp, supra; Hence, see also Brown v. Board supra. *12 we are unable to thesis an posit this implied repeal Law Against by Discrimination the enactment subsequent N. J. S. 18A:36-20 with respect curricula discrimination.
There is the related that argument the two laws are inconsistent or and therefore repugnant act, the later S. A. 18A:36-20, alone. Porch, survives Brewer v. 53 J.N. 167, 173 (1969). “Repeals by favored”, implication are not New Jersey State Policemen’s Benevolent Ass’n Morris v.
town, 65 N. J. 164 (1974); the purpose to must repeal be free from reasonable doubt. Swede v. Clifton, 22 N. J. 303, 317 (1956). Repugnancy or statutory incompatibility to found an implied repeal legislation must inescap- be
528 Ass’n v. Policemen’s Benevolent Jersey New State
able. Morristown, least at supra police (statute requiring repealed with impliedly inconsistent years old twenty-one majority); as age establishing eighteen act broadly Cruz, (statute N. J. (1965) Labor v. 372 Department of projects works in public of aliens prohibiting employment insuring Discrimination with Law Against inconsistent aliens’ rights). same with the deal the
Here, respective while statutes relating matter, unlawful discrimination namely, subject inevitable schools, there is no to curricula the or application intrinsic the administration incompatibility Ed., Haddonfield, v. Board Gilchrist the laws. Cf. Winner, 1978); Hackensack N. J. Div. Super. 358 (App. discussion 1978). (See Div. Super. (App. the jurisdiction of the We therefore conclude infra). school curricula discrimination over public Commissioner embodiment token its exclusive not same impliedly 18A:36-20 not preempted in N. J. S. A. has same Division this over jurisdiction repealed are vested Both agents matter. administrative to deal with competent and are concurrent these controversies.
Ill view of Appellate It was the Division that juris- Division, though diction of the concurrent with that of words, In .Commissioner, mandatory. was other affixed, so upon filing complaint attached and once had discretion abstain from Division no the exercise toor otherwise refrain from jurisdictional powers its proc- In so essing completion. ruling, was mistaken. court below lower court cited several cases to illustrate its here, commence
ruling “[e]omplainants having opted Division, in the are entitled proceeding to continue
529
there”,
211;
147
J. Super, at
South
v. Ver
Burlington
Co.,
mont
Inc.,
Elec.
133 Vt.
2d 19
(Sup. Ct.
Busick
Bd.,
v. Workmen’s
1975);
Comp.
7 Cal.
Appeals
3d
967, 104
Rptr. 42,
Cal.
At one of bottom, is question statutory construction, is, intent. determining Daaleman legislative Co., Gas 77 N. J. Elizabethtown (1978); Davis, Treatise, Law 4.07 Administrative at 258-260 (1958); § Construction, Statutory 2A Sutherland 45.03 at 10-14 § more ed. focused (4 1973). inquiry this ease is Legislature whether the intended that jurisdiction of on Civil over a Rights the Division discrimination charge school curricula based upon relating filed com be could under no circumstances transferred plaint or held in allow charge resolved abeyance by the Com of Education. missioner the statutory with the
Addressing provisions dealing and powers, Division’s we do not extrapolate the preclusive effect language employed urged by from the the Law Against It evident Discrim complainants. to the Division statutory authority ination on Civil grants *14 530 “shall” Division terms. strongest possible in
Rights the dis alleging upon and act receive, investigate, which 10:5-8(c), A. N. J. 8. sex, because crimination by “[a]ny General Attorney with and filed be made may unlawful discrimination. aggrieved by to be claiming person” of “any” complaint, After filing N. J. 8. A. 10:5-13. to investigation “shall” cause prompt General Attorney cause therewith, and, if is probable in connection made the unlaw eliminate immediately to found, “shall” endeavor in case Finally, J. 10:5-14. N. A. discrimination, 8. ful discrimination, eliminate failure to acts issued in to be hearing “shall” cause a notice General is N. J. 8. 10:5-15. nothing Division. A. There name of the unlawful discrim rectify any to authority suggest 10:5-14, include the adminis does not ination, N. of discrimination complaint transfer trative power same, with the solemn respon statutorily charged an agency even and with an discrimination remediating sibility of the major aspects charge. over other responsibility fuller Univ., Columbia 39 Rights Human Division v. State Cf. N. 19, 23, Y. 350 E. 2d 619, 385 S. 2d 612, N. Y. 2d S. 1096, Ct. den. 429 U. 97 S. 1976), cert. (Ct. App. 399 York College Pace v. New (1977); L. Ed. 543 51 2d 28, 38, Rights, Human Y. 2d on City Commission E. 471, 478, 339 N. 2d 885 (Ct. App. N. Y. S. 2d commission nor the courts 1975) should (“Neither except assume academic invade, rarely oversight, and only restraint, caution in such sensitive with greatest faculty promotion, tenure, espe appointment, areas cially higher learning institutions citations f omitted]”). there on salutary disposition part
In general generously discretionary construe powers courts to accord maximum agencies flexibility of administrative with Particularly is this so achieving goals. are charged governmental responsibility agencies great sensitive and areas of social and human complex import and vested with a wide tools regulatory range encompassing educative, investigative, prosecutorial, adjudi- cative and Bd. Ed. rule-making powers. Galloway Twp. Ass’n, Galloway Twp. Ed. N. J. 25 see (1978); Cavicchia, Mazza v. 15 N. J. 498 The Division (1954). Vesta,
Civil Rights is such an David v. agency. supra; See Co., Jackson v. Concord supra. *15 reason, bar,
There absent occlusive for statutory is no an an to be obtuse to the concerns agency administrative genuine of other administrative concurrent agencies possess jurisdiction over the subject same matter. This is especially controversy legitimately so where the is multidimensional and touches the of more than In that agency. competence one context, encouraged administrative should never be agencies jurisdictional to internecine engage struggles hegem- The unilateral and ony. assumption jurisdic- possessive another, tion by one to the exclusion of more agency perhaps that, creates risk suitable, many-sided a agency although laid to rest in whole or in from the controversy may part a administrative vantage single in the agency, process other interests be mishandled important may or neglected.
Such considerations make quite evident principles and deference comity to are sibling agencies fundamental part responsibility administrative tribunals ac charged complex and overseeing manifold also the tivities that are appropriate statutory concern of Winner, other bodies. Hackensack v. governmental supra; Interstate Commission, Commonwealth v. Commerce 182 280, D. C. 561 F. U. S. 2d 278 C. App. (D. Cir. 1977), 1011, cert. 434 U. S. S. Ct. 723, den. 98 L. Ed. 54 2d 754 State Division see Human v Rights (1978); Columbia Univ., Pace v. New York College supra; City Commission on Human v. Rights, supra; New York City Com Maloff Rights, on Human 38 N. Y. 329, mission 2d 379 Y. S. N. E. 2d 342 563 (Ct. 2d App. 1975); Warner-Lam Commission, bert Co. v. Federal Trade F. 361 948 Supp. (D. 1973). D. This is corollary C. of the application concurrent, dis has where court principle broader an or' adminis court with another cretionary non vel decision to exercise trative agency, and expertise competence, fully responsive should be Airlines, Allegheny Nader other tribunal. status Inc., L. Ed. 2d 643 S. 96 S. Ct. U. Today”, Doctrine Field, “The Abstention See (1976); deference to Comity cog Rev. U. Pa. L. 590 (1977). or controversy, that a are assure designed nate tribunals forum or facets, resolved critical will be its 'most scale, best which, position on a comparative body status, competence administrative of its virtue matter. adjudicate regulatory expertise circum as well to serve applied, prudently These precepts, agencies occupying administrative collisions between vent over agency conflicts in decisions avoid areas similar variant Other spin-ofEs applica matter. same res collateral doctrine, judicata, such of the comity tions the single-con of issue preclusion principles estoppel, been constructively have also troversy requirement, applied *16 to eliminate and duplicate piece administrative agencies & United States v. Utah Construction meal litigation. Co., 394, 418-422, 86 1558- 384 U. S. S. Ct. Mining 659-661 Hackensack v. L. Ed. 2d (1996); 1560, 16 Davis, 29-33; Winner, J. at Ad Super, supra, Treatise, 548-584, 18.02-18.05 at supra, ministrative Law §§ 625-628. 18.12 at § call for administrative the action comity of Principles instance agencies administrative at the of by the taken of portions General in this case. the com- transferred to the Commissioner re- that have been plaints of educational and courses of programs late to the content level professional of implicating highest matters study, educational field. There is expertise judgment claim competitive by the Division that can no match or educators area fulfill the this educa- competence 18A in of Title this Thus the goals tional educa- respect. tional cannot be disasso- interests of which complainants, be ad- ciated from their discrimination can best grievances, dressed by the Commissioner. is,
There to believe every reason importantly, Commissioner his con can discharge faithfully fully stitutional the vestiges to eliminate statutory duty complaints invidious sex in these discrimination as alleged done con can be (if otherwise and that established) Jenkins sistent with educational standards. applicable Cf. Ed., Booker v. Morris and Bd. supra; School Dist. Twp. Education, v. Board Morean Plainfield, Board supra; Ed., Montclair, There presently J. 237 (1964). N. J. exist rules the implementation detailed governing broadly et seq. They A. N. J. A. C. 6:4h—1.1 S. 18A:36-20. sex, command further unmistakably fashion in a nefarious characteristics, other shall not among a student deny limit course or offerings serve to or from access to benefit educational any or athletic program or impede completion of courses of study. Included those regulatory prohibitions are sex-discriminatory prac tices relating compensation coaches, administration of tests, and career guidance well as counselling, as pregnancy N. J. or familial status disabilities. A. C. 6:4-1.5. These are the criticized in very practices filed herein. school districts are Additionally, enjoined to submit plans 6:4-1.7, affirmative action for N. A. C. compliance, are subject periodic review and N. J. evaluation. progress A. C. 6:4-1.8. individual Significantly, any may petition the Commissioner to resolve under these disputes regulations, N. J. C. 6:4-1.9, and the Commissioner himself refer may a violation any judicial “to administrative appropriate and/or A. C. Federal, agencies.” State local 6:4-1.7 ac (g); cord, N. J. S. A. 10:5—13. thus see in this far-reaching We *17 regulatory scheme means ample persons aggrieved sex discrimination in school curricula public can seek vindication. administrative a more complete
It is difficult to hypothesize in discrimination to the invidious eradication commitment re- now in than and education public schools public implementing regula- flected in the and operative statute We not do of Education. tions the Commissioner governing case, Divi- conceive, this under the circumstances in hand and its in staying regulatory sion Civil Rights, curricula, of school in matters Commissioner to the deferring its own in or any upon abnegating is reneging sense for administrative in this context calls duties. Abstention concurrent, discretionary and the essence of is statesmanship exercised. The Division acted cor- jurisdiction responsibly in General upon the instructions of rectly case to these the Com- transfer particular missioner Education. That is where matter belongs. below judgment is reversed.
Accordingly, J., assumes that majority concurring. Schreiber, ain discrimina- Rights Division on Civil has sex schools. case fix and curricula the public tion determine — has is a mistaken one for the Division This assumption been, authority vested expressly impliedly, never what should to determine courses schools. taught A. J. 8. 10:5-4 for Reliance mis- upon assumption placed. act, 10:5-4, admittedly 8. cornerstone of all to obtain
recognizes persons employment the civil rights accommodations, “all and utilize facilities advantages, accommodation, privileges any place publicly accommodations, other assisted real housing property,” racial, without sex or other discrimina- proscribed religious, tion, only conditions limitations applicable to all This provision, alike the same persons. substantially 1949,1 form refers to since .(a) employment usage and (b) of a enjoyment place public accommodation. 11, § 1L. c.
Since a a as public school included definition by place N. J. A. accommodation, majority of S. 10:5-5 public (Z), out of points that would to be study appear courses offered The “advantages” majority or of the “privileges” school. then fix concludes the Division have the right that would the contents of of those courses But the conclusion study. follow, not does only the statute that prescribes op portunity to afforded to ir attend the courses be all study respective sex or reasons. discriminatory other illegal A distinction course is made between what being must offered and the of that Eor availability example, offering. is a library place public accommodation. Its books must be to all open irrespective sex, race, etc. However, what boobs are to be purchased is to be determined by Library Board, Trustees or not the Division on Civil Rights. Resolution of the content courses has not in been vested The Division on Civil authority This Rights. has been lodged with Commissioner of Education or other appropriate educational A body. technical of N. J. reading S. A. 10:5-4 to include the shaping by Division on Civil Rights the contents of public school curricula stretches the beyond language any indicia of legislative intent effect.
When the Legislature, aware presumably authority in vested The Division Civil J. 8. A. Rights, 10:5-l in seq., et 1973 directed the Commissioner Education to provide pupil in
no this State shall be discriminated against to, advantages, obtaining any privileges admission or study race, color, creed, or courses of of the school sex reason of origin national [37. A. 18A:36-20] J. 8.. did not intend to Commissioner of Education safe- have matter identical from unlawful discrimina- guard tion was handled in Division. already being Certainly Legislature was fully cognizant that addressed to courses of the content study and of educational programs of Educa
are more Commissioner addressed properly tion. over area specialized It confirmed rather than in Education rested with the Commissioner of Act Education the Division on Civil Public School Rights. Cahill, et Robinson seq.; 18A:7A-1 S. *19 No. FO N. General J. 459-460 (1976); not one is 28-1975, The presented October issue a that principle traditional implied repealer, or even the Sutherland, one, a specific statute more prevails general over Bar Hotel Statutory Construction 51.05 State (1973); § Foods, but, rather, acknowledgment 18 N. J. 115 (1955), vested the more and all-inclusive pervasive in of Educa the State Commissioner Board of Education and tion the in terms a legislative recognition is sweeping interest in of discrimination appropriate regulation in the are con schools, at least curricula insofar as cerned, Division on authority transcends the general Civil Rights. an in administrative majority position the
Inherent jurisdictional responsi- its agency abnegate may permanently difficulties, mandatory bilities various such the obliga- are its on execute Rights tion on Division Civil imposed Norrell, In duties, Eq. 550, re J. 553-554 see & A. and the of a determination effect (E. 1947), binding of Education under N. J. S. 18A:36- the Commissioner J. A. 10:5- 20 on The Division Civil under S. Rights 1 et agencies, jurisdic- administrative seq. Although having over the same general subject tion matter under different statutes, may act concert with to each pay deference other, their individual must remain unim- responsibilities paired.2 for
I reversal judgment concur reasons stated. 2See L. 13, 1978, provides e. 73, approved July among agencies procedures certain administrative uniform certain Affairs. Division of Consumer within P. J. A. D. Conford, assigned), dissenting. (temporarily I believe correctly, Division decided Appellate appeal 147 N. J. I its Super. affirm (1977), judg- would ment. I think conclusion with its impossible disagree that both the Division on Civil Rights and the Commissioner of Education have mat- statutory jurisdiction over ter the instant Court, while complaint. lip giving service to the same conclusion, the Division effectively strips of jurisdiction under it to be holding mandatory obliga- tion to its forgo exercise in favor Com- deferring missioner of Education.
The inconvenience of concurrent respect of the subject matter here implicated obvious, is as Judge but (cid:127)Crane aptly observed in the Division, the matter Appellate one for attention by 147 N. at Legislature, Super, 212, rather than improvisation of so radical cure Court as here. declared attention to the
Pending legislative most subject, salutary course of administrative *20 of this kind of handling Division, when complaint, brought by parties before the Education, would be for it to require Commissioner of subordinate, Division, anor appropriate testify before the where in conciliation confer- appropriate, participate ences, so that the educational expertise Department of the Education be available could made Division for the most edified effective exercise of its Moreover, case. particular it would be as disposing as it normally expected wise would the Division accord deference to the of the regulations Department would in the matter sex of Education discrimination in the before it. These in com- disposition guides, Division’s record of effectiveness in proven bination of eradication of objective and devotion to invidious discrimination, a result both could achieve respectful mandate of jurisdiction in Division existing legislative the most prudent and conducive to thereof in the exercise sphere. interest educational opinion. Justice Clifford in this joins dissenting Schreiber, result. J., concurring Hughes For Justices Sul- reversal —Chief Justice livan, ashman, P Handler —5. Schreiber
For Coneord —2. and Judge Clieeord affirmance—Justice PLAINTIFF-RESPONDENT, WHITE, ROBERT B. BERGEN, OF DEFENDANT-APPELLANT. TOWNSHIP NORTH September 14, Argued October 1977 Decided