87 A.D.3d 268 | N.Y. App. Div. | 2011
Lead Opinion
OPINION OF THE COURT
At all times relevant to this proceeding, respondent Amelia Kearney (hereinafter respondent) and her daughter (born in 1993), both African American, lived in the City of Ithaca, Tompkins County. In 2006, respondent filed a complaint against petitioner with respondent State Division of Human Rights (hereinafter SDHR), alleging that her daughter, while a student at one of petitioner’s middle schools, was repeatedly subjected to racial insults, racially-based threats and physical harm “by a
SDHR investigated the complaint and referred the case to a public hearing,
Subsequently, petitioner commenced this proceeding pursuant to Executive Law § 298, challenging SDHR’s jurisdiction over it, as a public school district, as well as the monetary awards and injunctive relief. Supreme Court determined that SDHR lacked jurisdiction over petitioner, prompting SDHR and respondent to appeal.
“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 [or her] race” (Executive Law § 296 [4]).
Petitioner contends that it is not subject to a claim of discrimination commenced against it pursuant to that provision on the sole ground that it is not an “education corporation or association.”
What constitutes an “education corporation or association” is not defined in the Human Rights Law. Accordingly, relying on the determination of the Appellate Division, Second Department in Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights (65 AD3d 1342 [2009], lv denied 14 NY3d 710 [2010]), petitioner urges this Court to look to the General Construction Law to supply the necessary definitions. Petitioner argues that a strict reading of General Construction Law §§ 65 and 66 leads to the conclusion reached by the Second Department that a public school district is not an “education corporation or association” for purposes of the Human Rights Law and is, therefore, immune from claims pursuant to Executive Law § 296 (4).
We disagree. Even assuming, arguendo, that the tortured legislative history underlying General Construction Law §§65 and 66 — as well as various other statutes — supports petitioner’s argument that the definition of “education corporation” therein does not embrace public school districts, the fact remains that this does not, as petitioner contends, necessarily mean that this definition is applicable to Executive Law § 296 (4). The approach
To adopt petitioner’s premise that the General Construction Law definition of “educational corporation” should be applied to Executive Law § 296 (4), and that the term “education association” should likewise be strictly construed, would be to accept that, in enacting the Human Rights Law, 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, nonreligious schools, relegating public school students to other more onerous and/or less comprehensive remedies. In our view, such a result is so clearly contrary to the express purpose of the Human Rights Law that resort to the General Construction Law is inappropriate and unreasonable. Thus, we conclude that public school districts are among the “educational institutions” over which SDHR has jurisdiction and that Executive Law § 296 (4) is the statutory mechanism by which it can seek to eliminate any discrimination by such school districts.
In light of our conclusion that petitioner is an entity subject to Executive Law § 296 (4), we next consider whether SDHR’s findings are supported by substantial evidence. As relevant herein, a violation of Executive Law § 296 (4) occurs when
Specifically, the Commissioner confirmed the ALJ’s finding that petitioner “repeatedly chose a course of action which both put the interests of the white male perpetrators ahead of the interests of the black female student, and was repeatedly shown to be, and acknowledged to be, ineffective in stopping the discriminatory conduct.” Ample testimony and other evidence, including a videotape of one of these incidents, supported respondent’s allegations that her daughter was subjected to verbal and physical abuse on the bus, including being spat upon, which was reported to the school. Nevertheless, petitioner’s middle school administrators routinely imposed only two to three-day suspensions on the offending students in response and testified that they felt it was “unfair” to move a problem student to another school to address that student’s conduct. The assistant principal conceded that there was a “racial tidal wave” that year, the school bus that respondent’s daughter took home was a “hell hole” and he knew that she had been threatened with gun violence. However, he did not require the offenders to submit to more serious superintendent’s hearings, he did not impose lengthier suspensions and he did not even exercise his unilateral power to ban the offenders from riding on that particular bus.
Turning next to the compensatory damage awards for the discriminatory conduct, we first address whether the award of $200,000 to respondent’s daughter is appropriate. The mental
With respect to the propriety of the separate $200,000 award to respondent, we note first our disagreement with petitioner’s contention that respondent is not entitled to an independent award because she initiated the discrimination claim on behalf of her daughter as victim. Executive Law § 297 (9) provides that “[a]ny person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages.” Here, an examination of the pleadings and proof reveals sufficient independent proof that respondent was aggrieved because of petitioner’s conduct so as to justify an award of damages. For example, respondent testified as to her own hurt and anger when she learned of the racial discrimination her daughter was experiencing. Respondent relayed that she had experienced similar discrimination and abuse growing up and this motivated her to attempt to prevent her daughter from being traumatized by it as well. She described how “these things stay with you for the remainder of your life . . . this never goes away.” Respondent’s detailed description of her largely unsuccessful and frustrating attempts to have petitioner’s employees respond to her requests for help for her daughter were, as aptly described by the ALJ, a “parent’s nightmare.” Accordingly, we find sufficient evidence to support a separate award to respondent. Nevertheless, given the comparatively sparse proof of emotional distress in contrast to the evidence of damages experienced by her daughter, we deem it appropriate to reduce the award of damages to respon
We also conclude that the injunctive relief ordered by SDHR was appropriate. SDHR issued an order requiring petitioner to provide antidiscrimination training to its staff, develop a new student disciplinary code to avoid recurrences of discrimination and develop a “community base[d] program to address the racial tensions in its schools.” Such relief was within SDHR’s broad authority to require the adoption of appropriate measures to redress injuries and to order offenders to cease discriminatory practices (see Executive Law § 297 [4] [c]; Matter of Freudenthal v County of Nassau, 99 NY2d 285, 291 [2003]; see also Executive Law § 290). Inasmuch as the injunctive relief was suitably tailored to the systemic nature of the problem and the circumstances existing in the schools which permitted the discrimination to recur, we find no basis to disturb it.
Petitioner’s remaining contentions have been examined and found to be unpersuasive.
. Petitioner’s CPLR article 78 challenge to SDHR’s authority to do so was unsuccessful. Although respondents argue that petitioner waived any objection to jurisdiction because of certain actions taken by petitioner prior to the completion of the public hearing, we note that this Court previously held in Matter of New field Cent. School Dist. v New York State Div. of Human Rights (66 AD3d 1314, 1316 [2009]) that a challenge to the applicability of Executive Law § 296 (4) to public school discrimination is appropriate after a final determination by SDHR.
. We note that Supreme Court erred in failing to transfer this proceeding challenging an order rendered after a public hearing to this Court. Unlike CPLR 7804 (g), Executive Law § 298 requires immediate transfer to this Court without consideration of any threshold issues (see 22 NYCRR 202.57 [c]; State Div. of Human Rights v YMCA of Greater N.Y., 139 AD2d 440, 441
. In our view, the dissent’s reliance on the definition of “educational institution” set forth in Education Law § 313 is misplaced. That statute clearly applies to unfair admissions and course enrollment practices as they relate to postsecondary schools. Since such practices would generally be irrelevant to public primary and secondary schools, the purpose and ambit of Education Law § 313 render its provisions entirely inapposite to those of Executive Law § 296 (4).
. Ironically, respondent’s daughter testified that, at one point, it was she who was told to “find another way home” by the bus driver after an incident during which she yelled back at her tormentera.
. Respondent’s daughter testified, among other things, that the taunting caused her to feel “worthless” and ashamed of her race. Also, her fear over the threats of gun violence against her prompted her to sleep on the floor away from the windows.
Dissenting Opinion
While I am in complete agreement with the majority in all other respects, I disagree that a public school district is an “education corporation” subject to Executive Law § 296 (4). Instead, a school district enjoys a unique status as a “municipal corporation” {see General Construction Law § 66 [2]), and the classification of corporations found in the General Construction Law persuades me that the Legislature did not intend Executive Law § 296 (4) to apply to school districts {see General Construction Law § 65 [a] [1]; [b] [1]; [c] [2]; § 66 [6]). As noted by the Second Department, these statutory classifications of “municipal corporation” and “education corporation” are mutually exclusive, and school districts are not subject to Executive Law § 296 (4) {see Matter of East Meadow Union Free School Dist. v New York State Div. of Human Rights, 65 AD3d 1342, 1343 [2009], lv denied 14 NY3d 710 [2010]).
In declining to apply the General Construction Law to Execu
There is nothing within the general object or the language of Executive Law § 296 (4) to suggest that school districts were intended to be included within the phrase “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 the contrary, the restrictive clause introduced by the relative pronoun “which” indicates that school districts are not included as, instead of holding themselves out to the public to be nonsectarian (implying that they have a choice), they are constitutionally required to be nonsectarian (see NY Const, art XI, § 3). Further, there is nothing within Executive Law § 296, or elsewhere in the Human Rights Law, that defines the term “educational institution” as used in Executive Law § 290 or suggests that it is meant to include school districts. Rather, the term is defined in the Education Law as “any . . . institution of posi-secondary grade subject to the visitation, examination or inspection by the state board of regents or the state commissioner of education and any business or trade school in the state” (Education Law § 313 [2] [a] [emphasis added]). Had the Legislature intended to include school districts within the provisions of Executive Law § 296 (4), it certainly knew how to do so (see e.g. Executive Law § 296 [15], [16]). In the absence of anything to preclude application of the General Construction Law, I would, upon our de novo review, grant the petition, annul the determination and dismiss the administrative complaint.
Peters, J.E, Spain and Egan Jr., JJ., concur with Stein, J.; Rose, J., dissents in a separate opinion.
Ordered that the order is vacated, on the law, without costs; petition reinstated, matter deemed transferred to this Court for
This ruling by the Second Department, which the Court of Appeals has declined to review, has resulted in a troubling disparity in the application of the statute. In its brief, respondent State Division of Human Rights advises that it no longer applies the statute within the Second Department while continuing to process complaints against public school districts in the other Departments, resulting in an unequal application of the law.