Appellate Division, Third Department Docket Number: COURT OF APPEALS STATE OF NEW YORK ITHACA CITY SCHOOL DISTRICT, -against-

Transcription

1 To Be Argued By: Jonathan B. Fellows, Esq. Time Requested: 10 minutes Appellate Division, Third Department Docket Number: COURT OF APPEALS STATE OF NEW YORK ITHACA CITY SCHOOL DISTRICT, -against- Petitioner-Appellant, NEW YORK STATE DIVISION OF HUMAN RIGHTS, on the complaint of AMELIA KEARNEY on behalf of her minor child EPIPHANY KEARNEY, Respondents-Respondents. BRIEF OF APPELLANT ITHACA CITY SCHOOL DISTRICT BOND, SCHOENECK & KING, PLLC Jonathan B. Fellows, Esq. Attorneys for Petitioner-Appellant One Lincoln Center Syracuse, New York Telephone: Facsimile:

2 TABLE OF CONTENTS TABLE OF AUTHORlTIES... iii PRELIMINARY STATEMENT... 1 STATEMENT OF THE CASE... 4 I. Amelia Kearney's Administrative Complaint... 4 II. The Proof at the Public Hearing... 4 III. The ALJ's Decision IV. The Commissioner's Final Order V. The Decision in Supreme Court VI. The Decision of the Appellate Division VII. Jurisdiction of the Court of Appeals QUESTIONS PRESENTED ARGUMENT I. The Holding of the Appellate Division Ignores the Plain Language of Section 296( 4) A. The Appellate Division should not have relied on Section 290' s reference to "Educational Institutions" B. The Third Department should not have disregarded the statutory definitions of "Education Corporation" and "School District" C. The Appellate Division ignored the limitation in Section 296(4) to a corporation "which holds itself out to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law" II. The Proper Standard of Liability Under Section 296(4) for "Permitting" Racial Harassment is "Deliberate Indifference"

3 III. There is No Basis for a Compensatory Damages Award to a Parent of a Student Under Section 296(4) of the Executive Law CONCLUSION ATTACI-IMENTS ii

4 TABLE OF AUTHORITIES CASES Page Barmore v. Aidala, 2006 U.S. Dist. LEXIS (N.D.N.Y. July 12,2006)... 38,39 Belanoff v. Grayson, 98 A.D.2d 353 (1 st Dept. 1984) Cavello v. Sherburne-Earlville Central School District, 110 A.D.2d 253 (3d Dept. 1985) Crispim v. Athanson, 275 F. Supp. 2d 240 (D. Conn. 2003)... 38, 39,40 Davis v. Monroe County Board of Education, 526 U. S. 629 (1999)... 36, 39, 44 Devito v. Opatich, 215 A.D.2d 714 (2d Dept. 1995) Enright v. Eli Lilly & Co., 77 N.Y.2d 377 (1991)... 23, 32 Gant v. Wallingford Board of Education, 195 F.3d 134 (2d Cir. 1999)... 36,37, 41, 44 Gilbert v. Stanton Brewery, Inc., 295 N.Y. 270 (1946)... """"... """".. "."".".""".".".. " 4 7 Hart v. Sullivan, 84 A.D.2d 865 (3 d Dept. 1981) Matter of East Meadow Union Free School District v. New York State Division of Human Rights, 65 A.D.3d 1342 (2d Dept. 2009)... : , 17,26,27 Matter of Ithaca City School District v. New York State Division of Human Rights, 87 A.D.3d 268 (3d Dept. 2011) , 19,20,21,22,24,35 iii

5 Rich v. Coopervision, Inc., 198 A.D.2d 860 (4th Dept. 1993) Saggio v. Sprady, 475 F. Supp. 2d 203 (E.D.N.Y. 2007) Spoon v. American Agriculturalist, Inc., 120 A.D.2d 857 (3d Dept. 1986) Yap v. Oceanside Union Free School District, 303 F. Supp. 2d 284 (E.D.N.Y. 2004) , 40, 41 STATUTES Civil Rights Act of 1964, Title VI , 35 Education Amendments, Title IX N.Y. Const, art XI, , 33 N.Y. Const, art XI, , 29 N.Y. C.P.L.R. 7804(g) N.Y. Education Law ,33 N.Y. Education Law 216-a N.Y. Education Law N.Y. Education Law N.Y. Education Law ,31,33 N.Y. Education Law , 43 N. Y. Executive Law , 20, 23, 24, 25 N.Y. Executive Law , 3, 18, 19, 20, 21, 22, 23, 24, 25,... 26, 27, 28, 29, 31, 32, 34, 35, 36, 45 N.Y. Executive Law N.Y. Executive Law , 26 IV

6 N.Y. General Construction Law N.Y. General Construction Law ,27 N.Y. General Construction Law N.Y. Tax Law 4 (1896) U.S. Const., amend XIV OTHER AUTHORITIES 8 N.Y.C.R.R (1) N.Y.C.R.R. Part N.Y.C.R.R. Part , 43 Chapter 908 of the Laws of New York (1896) Chapter 852 of the Laws of New York (1935) ,30 Chapter 800 of the Laws of New York (1951) Chapter 285 of the Laws of New York (1952) Chapter 960 of the Laws of New York (1958) ,25,31 Chapter 958 of the Laws of New York (1968)... 24,25 v I

7 PRELIMINARY STATEMENT Appellant, the Ithaca City School District (the "District"), submits this brief in support of its appeal from the Opinion and Order of the Appellate Division, Third Department. The Third Department, with one justice dissenting, held that the New York State Division of Human Rights (the "Division") has jurisdiction under Section 296(4) of the Executive Law to adjudicate claims against public school districts. This case involves student-on-student racial harassment in one of the District's middle schools. The District has never disputed that harassing conduct took place, or that it was a serious matter. In fact, it was undisputed that the middle school administrators promptly investigated each incident reported to them. The students involved were both counseled and subjected to the only disciplinary tool afforded to public school districts under the New York Education Law, out-ofschool suspension. Further, the District undertook to place certain of the students involved in the harassment in an out-of-district program for students with behavioral issues. The District conducted mediation sessions and leadership programs involving the students who had committed the harassment to attempt to educate them about the harmful consequences of their behavior. Despite the District's response, following a public hearing the Division found that the District's actions were "tainted by indifference." In fact,

8 the Division was critical of the District for undertaking to place the students who perpetrated the harassment in special programs for students with behavioral issues and was critical of placing the students in leadership programs intended to address racial tensions. At times, it appeared that the Division had confused the District with an employer that could simply terminate employees who commit harmful and racially insensitive behaviors. The District, however, has a legal obligation to educate all students of the District, including those who perpetrate inappropriate acts. The District does not have the legal authority simply to expel students responsible for racial harassment. Executive Law 296(4) provides that: It shall be 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... In holding that Section 296(4) applies to public school districts, the Appellate Division ignored the plain language of the statute. The Third Department never explained how a school district is an "education corporation." As the Second Department held in Matter of East Meadow Union Free School District v. New York State Division of Human Rights, 65 A.D.3d 1342 (2d Dept. 2009), leave to appeal denied, 14 N.Y.3d 710 (2010), the Legislature has specified

9 that school districts are "municipal corporations," and has adopted a definition of "education corporation" that is exclusive of school districts. The plain language of Section 296(4) does not just include the term "education corporation," but also the language that such corporation has held "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." Public school districts have never had to hold themselves out to the public as "non-sectarian" or "exempt from taxation." The Third Department likewise ignored the history of Section 296(4), which was adopted by the Legislature to address discrimination in private schools by exercising the Legislature's authority over tax exempt organizations. Instead of looking to the statutory language of Section 296(4), the history of its enactment, or the definition of "education corporation," the Appellate Division simply exercised its own legislative judgment that the protections of the Human Rights Law should be available to students in public schools and not just to private school students. Discrimination in public schools, however, was outlawed by the Legislature in Section 3201 of the Education Law. It is the State Education Department that manages the State's public schools. If it is good public policy for the Division to adjudicate claims of discrimination in the public schools, then the Legislature should enact a provision affording it jurisdiction to do so

10 STATEMENT OF THE CASE I. Amelia Kearney's Administrative Complaint This matter was commenced by an administrative complaint filed by Amelia Kearney on behalf of her daughter, Epiphany Kearney. A The complaint alleged that Epiphany was a student attending the District's DeWitt Middle School, and that she was harassed during the school year "by a group of boys who call themselves 'rednecks. '" The complaint alleged several incidents that included use of racially offensive language, punching, spitting and threats. A The District answered the complaint and admitted that certain of the incidents had taken place. The District asserted as a defense that the Division lacks jurisdiction over the District because it is not an "education corporation." Further, the District asserted that it was not liable for the conduct by the other students because the District has policies and procedures in place prohibiting such racial harassment, conducted prompt investigations in response to the complaints made by Amelia Kearney on behalf of her daughter, and took corrective measures in response. A II. The Proof at the Public Hearing The Division took testimony at the public hearing on December 19 and 20, 2007, before Administrative Law Judge Christine Marbach Kellett. The ,1

11 proof at the public hearing was that the District first learned of the behavior on September 28,2005, when Epiphany reported to DeWitt's Associate Principal James Thomas ("Associate Principal Thomas") that another student named Philip Campbell ("Philip") had used racially offensive language. A Associate Principal Thomas responded to the complaint by going to find Philip and bringing him back to his office. Upon being questioned by Associate Principal Thomas, Philip admitted making the statement. A.413. Associate Principal Thomas prepared a disciplinary referral, citing inappropriate language, bias remarks, aggressive behavior, harassment and bullying and placed Philip on in-school suspension for the remainder of the day, followed by two days of out-of-school suspension. Associate Principal Thomas counseled Philip regarding his behavior, and telephoned his mother and spoke to her about the conduct. A , At approximately the same time, Associate Principal Thomas learned of conduct on the bus ridden by Epiphany by another student, Shane Townley ("Shane"). A referral was completed by the bus driver, who reported that Shane called another student a racist name during an ongoing incident on the bus. A In response to the referral, Associate Principal Thomas spoke with Shane, and thereafter suspended him out-of-school for two days. A. 431, He spoke with Shane's parents regarding the incident and the suspension. A

12 During the week of October 10, 2005, through October 14, 2005, Epiphany told her mother that she was being harassed on the bus with racial epithets. Amelia Kearney wrote a letter to Principal Acerra. A The letter identified three boys who had committed the harassment. A.919. Principal Acerra reviewed the letter from Amelia Kearney, and discussed the situation with Associate Principal Thomas. A Associate Principal Thomas had already investigated the incidents involving Epiphany and Philip and Shane, and taken disciplinary action. Based on the letter and reports from Epiphany, Associate Principal Thomas spoke with a third student, Ryan Morse ("Ryan"), who admitted making a racist remark. Associate Principal Thomas placed Ryan on in-school suspension for the balance of the day, and thereafter suspended Ryan out-of-school for two school days. A Associate Principal Thomas spoke with Ryan's mother about the conduct. Associate Principal Thomas received another report from Epiphany on or about November 8, 2005, that Philip was calling her names and swearing at her on the school bus. A.435. Associate Principal Thomas prepared a disciplinary referral on November 8, 2005, which stated that Philip continues to harass a student in school and on the bus despite his being asked not to by Mr. Thomas. He calls her names and swears at her, and she has endured this for quite awhile

13 A He suspended Philip out-of-school for two school days, counseled him about his behavior, and spoke with his parents about the incident. A On December 6,2005, Ms. Kearney reported in a telephone call that Philip had spat on Epiphany and that Tyler Herndon ("Tyler") had taken her backpack and called her names. A Associate Principal Thomas also spoke to Epiphany directly about the incident. A Associate Principal Thomas interviewed Philip about the spitting incident when he came to school on December 7, and although Philip initially denied spitting at Epiphany, he ultimately admitted to the conduct. A Associate Principal Thomas suspended Philip out-of-school for two school days. He spoke to Philip's father about the incident. A , Principal Acerra spoke with Tyler on both December 7 and 8, 2005, about the allegations. A On December 9, 2005, he suspended Tyler for five school days. A. 583, Associate Principal Thomas also interviewed Shane regarding the December 6, 2005, incident on the bus and directed two days of in-school suspension for his conduct. A Associate Principal Thomas spoke with Shane's mother and reported that he had been verbally harassing a girl on the bus. A

14 Associate Principal Thomas and Ms. Kearney had an extensive telephone conversation on December 7, 2005, regarding the situation at DeWitt. Associate Principal Thomas explained to Ms. Kearney that her daughter's situation at De Witt was part of a situation involving two groups of 15 to 20 students, one consisting primarily of white students from the rural areas of the District, and another consisting of African-American students from the urban portion of the District, who were engaging in inappropriate conduct consisting of confronting each other in the hallways. A During the course of the conversation, Ms. Kearney stated that she believed she needed to contact the police in order to deal with the situation regarding her daughter's safety. Associate Principal Thomas advised her that she was free to contact the police. A Ms. Kearney did contact the police, who later spoke with Associate Principal Thomas and advised that the police would not intervene because it was verbal harassment involving minors. A On December 8, 2005, Ms. Kearney sent Associate Principal Thomas an stating that she had spoken with the sheriff, who advised her that the issues would be handled internally by the District. Ms. Kearney advised that she was going to hold Epiphany out of school. A.932. Associate Principal Thomas responded to the by telephoning Ms. Kearney and leaving a message. He

15 sent a confirming to Ms. Kearney that he wished to speak with her about the matter. A. 93l. Ms. Kearney again spoke by telephone with Associate Principal Thomas on December 8, A Associate Principal Thomas told Ms. Kearney that the police had told him it was a matter for the school. He further apologized to Ms. Kearney and told her the school was doing everything possible to insure Epiphany was safe. The conversation was a lengthy conversation lasting a half hour. A Associate Principal Thomas acknowledged that Ms. Kearney was not satisfied with his responses in their conversations on either December 7 or December 8, On December 10, 2005, Associate Principal Thomas and Principal Acerra met with Ms. Kearney to discuss her concerns. Ms. Kearney requested that the District provide a home tutor for Epiphany in an on December 13,2005. By dated December 14,2005, Associate Principal Thomas encouraged Ms. Kearney to have Epiphany return to school. A Epiphany did return to school. On February 16, 2006, Ms. Kearney sent Associate Principal Thomas an stating that a student had thrown an orange at Epiphany in the cafeteria. The further stated that "Tyler Herndon, the boy whose ass should have been thrown out a long time ago, held up a note to

16 the bus window that read 'the KKK will be coming to all the niggers' houses'." A Associate Principal Thomas interviewed several students regarding the bus incident. Several students signed statements. The students indicated that Tyler had created an offensive sign and held it up to the bus window. A , The investigation indicated that Philip had also held up the sign. A Associate Principal Thomas suspended Philip for an additional two days. A. 636, Tyler was suspended out-of-school for four school days. A. 637, Following this incident, Associate Principal Thomas reached an agreement with Philip's parents that Philip would be removed from De Witt and placed out of the District in a BOCES program for students with behavioral issues. A Tyler was removed from the bus for the remainder of the school year. A.637. There was no proof of further incidents thereafter. The suspensions, disciplinary counseling of students involved, and conversations with their parents, and ultimate removal from either the bus or school were not the District's only responses to the issues at DeWitt in In fact, the incidents involving Epiphany took place in the context of significant racial and cultural tensions between two groups of students at De Witt during the school year. Principal Acerra and Associate Principal Thomas

17 identified this problem early in the school year. They determined to address the issues by a two-day mediation involving the groups of students involved. The District engaged two outside mediators to conduct the sessions. A The October 4-5,2005, mediation sessions were intended to have the separate groups meet first, to discuss what they believed the issues were. On the afternoon of the second day, the groups were to be brought together with the mediators to try to mediate their issues. A All staff at DeWitt were apprised of the mediation. A The parents of the students who were selected to attend the sessions were advised by correspondence sent home. A Students who were identified as leaders and actively involved in the disputes were selected to attend the session. A All of the students later identified by Ms. Kearney as being involved in the harassment of her daughter were selected to attend the mediation sessions (Philip Campbell, Ryan Morse, Todd Updike, Shane Townley and Tyler Herndon). A Unfortunately, after the first morning session, the two groups went to lunch together and a fight ensued. A Principal Acerra therefore elected to cancel the second session. Principal Acerra and Associate Principal Thomas provided talking points to all homeroom teachers for the next day to discuss the situation. A , In light of the difficulties with the mediation sessions with the large groups, Principal Acerra decided to create three smaller groups of students in an

18 effort to work on the tensions, a Leadership Group, a Supporting Group and a lunch group dubbed the "Lunch Bunch." A.738. Principal Acerra created these smaller groups because he concluded that the groups that had been invited to the mediation were too large. Each of the smaller groups were integrated by race and gender. A Again, the students involved in the incidents with Epiphany Kearney were included in these groups. A Meetings of the smaller groups were held off-campus during mid-october. A , The Leadership Group and the Supporting Group attended a ropes course program at Cornell University on October 17,2005. A The Leadership Group continued to meet regularly throughout the school year to have discussions and plan activities. For example, they took the lead on organizing "mix-it-up" day, which is a national day in which students are invited to sit with someone at lunch with whom they do not normally sit. De Witt had a second "mix-it-up" day later in the school year, which the Leadership Group also organized. A Students from the Leadership Group, Supporting Group, and Lunch Bunch also planned and gave a presentation to their parents in December 2005 regarding their activities and discussions. A l. The students in the Lunch Bunch also continued to meet during lunch time on a regular basis throughout the school year, and had discussions 12

19 facilitated by De Witt staff and representatives from the Ithaca Youth Bureau. A The Supporting Group also met to assist in the planning of particular events (such as mix-it-up day and the December 2005 presentation to parents) throughout the school year. A In April 2006, De Witt administrators organized a meeting of approximately 20 sets of parents of the students who had been involved in conflicts earlier that school year. A The District has long spent considerable time and resources to provide its staff with professional development activities and training related to diversity, anti-bias, multi-cultural education, and positive school climate. During the time period from September 2003 through July 2007, the District provided over 300 professional development activities and training on these subjects to its staff. A The topic of addressing racism and bias was discussed at every DeWitt staff meeting during the school year. At a December 7,2005, meeting, the De Witt staff met with a professional mediator from Cornell University, and a representative from the Community Dispute Resolution Center, to brainstorm about the racial problems occurring at De Witt and how to solve them. Mr. Acerra subsequently wrote a memorandum summarizing the discussions at the meeting. A ,

20 In the Fall of2005, the District hired two representatives from Training for Change ("TFC") Associates as paid consultants to assist with the training of staff and to help put together a long-term plan to ensure a bias-free environment at De Witt. TFC Associates worked with De Witt staff throughout the school year on addressing racism, and made presentations at District Superintendent's Conference days on that subject. The entire focus of the District's January 2006 Superintendent's Conference day was on creating a biasfree climate. A , The District also addressed specific students involved in the racial incidents by placing them in programs outside the District. The proof at the hearing was that several of the students involved in the incidents with Epiphany were classified as students with a disability pursuant to the Individuals with Disabilities in Education Act and Part 200 of the Commissioner's Regulations. 8 N.Y.C.R.R. Part 200. Special provisions govern discipline, i.e., out-of-school suspensions, of students classified as disabled. 8 N.Y.C.R.R. Part 201. Once a student with a disability has been suspended for a total of ten days during any school year, special rights are triggered, including the right to an impartial hearing to challenge the suspension and the student's placement. 8 N.Y.C.R.R (b), The proof at the hearing was that in addition to simply suspending the students involved, the District was working towards placing certain of these

21 classified students in out-of-district BOCES programs that focused on students with behavioral issues. One of the students involved was placed out-of-district in November, A A second student involved in the incidents, Philip, was placed out-of-district following the incident in February A.636. With these two students removed from De Witt, and a third removed from the bus, there were no further incidents. III. The ALJ's Decision On April 10, 2008, ALl Kellett issued Recommended Findings of Fact, Opinion and Decision, and Order. A The ALl was critical of the District for not imposing longer disciplinary suspensions on the students who had committed the acts of harassment. The ALl was also critical of the District's efforts to remove these students from the schools of the District by placing them in BOCES programs. The ALl was further critical of the District for involving the perpetrators of the harassment in the "Leadership Group" intended to mediate the racial differences in the school. Based on these findings, the ALl concluded that the District was "deliberately indifferent" to the acts of harassment committed by the offending students and was therefore responsible for them under Section 296(4) of the Executive Law. The ALl ordered the District to pay compensatory damages to Amelia Kearney in the amount of $500,000.00, and to Amelia Kearney, in trust for Epiphany Kearney, in the amount of an additional $500,000.00, for a total

22 award of$l,ooo,ooo. The ALJ further ordered sweeping injunctive relief requiring the District's "Board of Education, its superintendents, bus drivers, cleaners, clerical staff, representatives, employees, teachers, volunteers and administration" to "participate in an intensive training program approved by the Division for the recognition of discrimination and its effect on children." A.30. The ALJ ordered the District to implement a new disciplinary code. The District was further ordered "to implement a community based program to address racial tensions in its schools." A. 30. The ALJ ordered that the District "develop staffing plans to insure the [District's] staff has the diversity, the sensitivity, the training and the tools necessary to end the racial disharmony evident in this record." A.30. IV. The Commissioner's Final Order The District submitted objections to the ALJ's Recommended Findings of Fact, Opinion and Decision, and Order. On May 8, 2009, the Commissioner issued a Final Order. A The Final Order reduced the compensatory awards to $200, for Amelia Kearney and $200, for Epiphany Kearney. The recommended order was "otherwise adopted in its entirety." The Commissioner did not address any of the objections raised by the District

23 v. The Decision in Supreme Court Following the issuance of the Final Order, the District commenced a proceeding in accordance with Section 298 of the Executive Law for review. On October 8, 2009, Supreme Court, Hon. Robert C. Mulvey, JSC, issued an order granting the petition on the ground that the Division lacked jurisdiction over the District. A A.17. Justice Mulvey stated: Although the matter is a proper subject of transfer under the statute, this Court has authority to dispose of objections which could terminate the proceeding, including lack of jurisdiction, per Section 7804(g) of the Civil Practice Law and Rules. The initial issue presented is whether the respondent SDHR had authority to hear and determine complaints against the petitioner school district. The Court finds that the SDHR did not have such authority. The petitioner is not an "education corporation" under the provision of Section 296(4) of the Executive Law. See East Meadow Union Free School District v. New York State Division of Human Rights, _ AD3d _, 2009 WL (Second Dept., 2009)

24 VI. The Decision of the Appellate Division The Division and Complainant appealed the order of Supreme Court to the Appellate Division, Third Department. The Third Department vacated the Supreme Court's order, and held that the Division had jurisdiction to adjudicate complaints against school districts under Section 296(4). Matter of Ithaca City School District v. New York State Division of Human Rights, 87 A.D.3d 268 (3d Dept. 2011) (A. 5-15). The Third Department noted that the Legislature had granted general jurisdiction to the Division under Section 290(3) "to prevent discrimination... in educational institutions." 87 A.D.3d at 272 (A. 7). The Third Department further noted that as a remedial statute, the Human Rights Law is to be liberally construed. The Third Department therefore concluded that the reference in Section 296(4) to "an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation" should be considered a reference to "educational institutions," which should be liberally construed to include school districts. The Third Department rejected the application of the legislative definitions of "education corporation" and "school district" in the General Construction Law to Section 296(4). The Third Department rejected applying these definitions because to do so would limit the protections of Section 296(4) to

25 the "relatively minuscule percentage of students where families can afford to send them to private, non-religious schools." 87 A.D.3d at 273 (A. 9). After finding that the Division had jurisdiction to adjudicate claims against school districts under Section 296(4), the Third Department reviewed the Division's findings to determine whether they were supported by substantial evidence. The Third Department concluded that the evidence showed that students had committed the racial harassment, but that the District's administrators "routinely imposed only two to three day suspensions on the offending students." It further stated that the District administrators had not used their power to ban offenders from riding on the bus. 87 A.D.3d at 274 (A ). The Third Department ignored the undisputed proof in the record that, in fact, certain of the perpetrators were removed from the bus and removed from school. The Third Department did not discuss any of the other actions the District took with respect to the racial incidents that occurred at DeWitt that year in concluding that the District was legally responsible for "permitting" the harassment to take place. The Third Department also upheld the amount of the $200,000 award to Epiphany Kearney, despite the lack of any testimony or evidence regarding medical or mental health care, beyond the mother's statement that she had sought such services for her daughter. The Third Department upheld the authority of the Division to make a separate award to Amelia Kearney as parent of a student, but

26 did reduce the award to Amelia Kearney from $200,000 to $50, A.D.3d at (A ). Justice Rose dissented stating: 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. Justice Rose continued: 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 non-sectarian (implying that they have a choice), they are constitutionally required to be non-sectarian (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 post-secondary grade subject to the visitation, examination or inspection by the state ,1

27 87 A.D.3d at (A ). board of regents or the state commissioner of education and any business or trade school in the state"... Had the Legislature intended to include school districts within the provisions of Executive Law 296(4), it certainly knew how to do so. (see ~ 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. VII. Jurisdiction in the Court of Appeals The District filed a timely motion for leave to appeal to the Court of Appeals. By Order dated November 17,2011, this Court granted leave to appeal. A ,1

28 QUESTIONS PRESENTED 1. Whether a public school district is subject to the jurisdiction of the Division under Section 296(4) as "an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation. " The Appellate Division, Third Department, held that school districts "are among the 'educational institutions' over which the 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." 87 A.D.3d at 273 (A. 9). 2. What is the legal standard of liability under Section 296(4) for "permitting" racial harassment by public school students? The Division's Administrative Law Judge applied a standard of "deliberate indifference" to the harassment to find that the District had "permitted" the harassment to take place. The Appellate Division, Third Department, upheld the Division's finding without discussing the legal standard. 87 A.D.3d at (A. 10). 3. Whether the parent of a student who has been harassed may recover damages under Section 296(4). The Appellate Division, Third Department held that the parent of a student who has been harassed may recover a separate award under Section 296(4). 87 A.D.3d at (A )

29 ARGUMENT POINT I THE HOLDING OF THE APPELLATE DIVISION IGNORES THE PLAIN LANGUAGE OF SECTION 296(4) A. The Appellate Division should not have relied on Section 290's reference to "Educational Institutions" The Appellate Division's holding is contrary to the plain language of the applicable statute, Section 296(4) of the Executive Law. Instead of relying on the statutory language of Section 296(4), the Appellate Division noted that the Human Rights Law is a remedial statute that must therefore be liberally construed to accomplish its beneficial purpose. The Appellate Division relied heavily on the general findings of the Legislature in creating the Division, which included the goal of eliminating discrimination in "educational institutions." N.Y. Executive Law 290(3). The fact that the Human Rights Law is remedial is not a direction to ignore the statutory language chosen by the Legislature. Enright v. Eli Lilly & Co., 77 N.Y.2d 377,385 n.l (1991). Further, the Division did not act in this matter pursuant to any authority granted under Section 290. Section 290(3) contains the legislative findings made to enact the Human Rights Law; it does not confer any jurisdiction to adjudicate claims. To the contrary, the Legislature has defined in

30 Section 296 a lengthy series of "unlawful discriminatory practices."\ In Section 297 of the Executive Law, the Legislature conferred jurisdiction to the Division to adjudicate complaints alleging any such "unlawful discriminatory practice." The premise of the Appellate Division's decision, i.e., that it should disregard the language chosen by the Legislature in Section 296 in defining "unlawful discriminatory practices" in order to achieve the remedial purpose of the Human Rights Law, is false. Even if the Appellate Division's primary reliance on Section 290 were proper, the language of that section does not support its conclusion. Section 290 references discrimination in "educational institutions," but there is no reason to conclude that the Legislature was referencing public school districts with this term. As Justice Rose noted in his dissent, the Legislature has defined "educational institution" in Section 313(2) of the Education Law as referencing "postsecondary" schools. 87 A.D.3d at 277 (A. 14). Section 313 of the Education Law prohibits discrimination in such schools. There is no reason to conclude the 1 As initially enacted when the Legislature created the Human Rights Commission in 1951, Section 296 proscribed "Unlawful Employment Practices." Chapter 800, Laws of New York In 1952, the Legislature changed the title of Section 296 to "Unlawful Discriminatory Practices" and added prohibitions of discrimination in places of public accommodation, resort or amusement. Chapter 285, Laws of New York In 1958, the Legislature moved the prohibition of discrimination in non-sectarian, tax exempt education corporations from the Tax Law to Section 296(4). Chapter 960, Laws of New York In 1968, the Legislature changed the Human Rights Commission to the Division of Human Rights. Chapter 958, Laws of New York

31 Legislature meant public school districts when it used the term "educational institutions" in Section 290. As a final matter, the Third Department's reliance on the term "educational institution" in Section 290 to construe the term "education corporation" in Section 296(4) is particularly problematic considering that the reference to "educational institutions" was added to Section 290 in 1968 (see Chapter 958 of Laws of New York 1968 (copy attached)), whereas the prohibition against discrimination in non-sectarian tax exempt "education corporations" was enacted as part of the Tax Law in 1935 (see Chapter 852 of Laws of New York 1935 (copy attached)); and was moved to Section 296(4) of the Executive Law in 1958 (see Chapter 960 of the Laws of 1958 (copy attached)). B. The Third Department should not have disregarded the statutory definitions of "Education Corporation" and "School District" This case should be decided not on the general reference to "educational institutions" in Section 290, but on the statutory language of Section 296(4), which applies to 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. N.Y. Executive Law 296(4). 25 \ \

32 Supreme Court Justice Mulvey correctly dismissed the administrative complaint following the decision of the Appellate Division, Second Department in East Meadow Union Free School District v. New York State Division of Human Rights, 65 A.D.3d 1342 (2d Dept. 2009), leave to appeal to denied, 14 N.Y.3d 710 (2010). In East Meadow, just as here, a school district brought a petition under Section 298 of the Executive Law to challenge a finding of the Division after a public hearing. The Second Department relied on the Legislature's adoption of the definitions of "education corporation" and "school district," which are mutually exclusive: Although the General Construction Law does define both "education corporation" and "school district," it establishes that they are mutually exclusive. Pursuant to General Construction Law 65 (a), a corporation is either a public corporation, a corporation formed other than for profit, or a corporation formed for profit (see General Construction Law 65 [a] [1]); it cannot be more than one of these. An "education corporation" is a type of corporation formed other than for profit (General Construction Law 65 [c]). A "school district," by contrast, is a type of "municipal corporation" (General Construction Law 66 [2]). Since a "municipal corporation" is a public corporation (General Construction Law 66 [1]), a school district is a public corporation. Hence, a school district cannot be an "education corporation" within the meaning of Human Rights Law 296 (4). 65 A.D.3d at 1343 (emphasis in original) ,1

33 Section 66(6) of the General Construction Law defines an "education corporation" as a corporation as defined in Section 216-( a)( 1) of the Education Law. Section 216-(a)(1) of the Education Law clearly defines "education corporations" to be corporations chartered by the Regents or formed by a special act of the Legislature, and therefore, excludes school districts. The express purpose of Section 216-a of the Education Law is to make clear that "education corporations" are covered by the Not-For-Profit Corporation Law. School districts do not have a charter from the Regents and they are not formed by a special act of the Legislature. They are not covered by the Not-For-Profit Corporation Law. Section 66(2) of the General Construction Law defines a "municipal corporation" as "a county, city, town, village and school district." Accordingly, the Second Department correctly concluded that the Legislature has clearly provided that school districts are "municipal corporations," not "education corporations. " The court below incorrectly rejected the Second Department's holding in East Meadow, and disregarded the clear legislative definitions of the terms "education corporation" and "municipal corporation" in the General Construction Law. In rejecting the applicability of these definitions, the Third Department cited Section 110 of the General Construction Law, which states that it "is applicable to every statute unless its general object, or the context of the language construed I

34 indicate that a different meaning was intended." In fact, this provision means the Court should apply the General Construction Law definitions because the "chapter is applicable to every statute," and nothing in Section 296(4) indicates the Legislature ever meant to cover public school districts when it acted with respect to non-sectarian tax exempt private schools. The General Construction Law just confirmed what has long been understood, that a school district is a form of "municipal corporation." The Third Department's reasoning, that the definition of "school district" in the General Construction Law should not be applied to Section 296(4) because then Section 296(4) would not apply to school districts assumes its premise. The Third Department repeatedly stated in its opinion that the District is advancing a "strict construction" of Section 296(4). This is incorrect: the District only asks that the Court apply the language the Legislature used. C. The Appellate Division ignored the limitation in Section 296(4) to a corporation "which holds itself out to be non-sectarian and exempt from taxation pursuant to the provisions of article four of the real property tax law" The Appellate Division's analysis did not only ignore the legislative definitions of "education corporation" and "school district," it wholly disregarded the language in Section 296(4) limiting its applicability to an entity "which holds itself out to the public to be non-sectarian and exempt from taxation." As the dissent noted, it is nonsensical to conclude that the Legislature was referencing public school districts when it used the words "which holds itself out to the public

35 to be non-sectarian." Public schools cannot be sectarian. N.Y. Const., art. XI, 3. Further, the prohibition against discrimination by an "education corporation" in Section 296(4) was enacted pursuant to the Legislature's authority over tax exempt organizations. The tax exemption in question originated in Chapter 908 of the Laws of New York, Section 4 of the Tax Law adopted in 1896 described the exemptions from taxation. Section 4(3) of the Tax Law exempted "Property of a Municipal Corporation of the State held for a public use," which obviously exempted the property of school districts. Section 4(7) of the Tax Law exempted: The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more such purposes... Chapter 908 of the Laws of New York, 1896, at 797 (attached hereto). This, of course, is the very language that was reenacted in 1935 as Section 4(6) of the Tax Law to continue the tax exemption for private schools, together with the prohibition of discrimination by an "education corporation." In 1935, the Legislature continued a tax exemption for private educational organizations. That provision exempted from taxation: The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women, or for religious,

36 bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, public playground, scientific, literary, bar association, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more such purposes, and used exclusively for carrying out thereupon one or more such purposes. Chapter 852 of the Laws of New York, 1935, at 1633 (attached hereto). Nothing in this statutory language describes a public school district. The final paragraph of the 1935 legislation added the following to the tax exemption for private schools: Id. at No education corporation or association that holds itself out to the public to be non-sectarian and exempt from taxation pursuant to the provisions of this section shall deny the use of its facilities to any person otherwise qualified, by reason of his race, color or religion. The tax exemption in question was obviously for the benefit of private organizations. Likewise, the Legislature added the final clause prohibiting discrimination by an "education corporation" claiming that exemption in order to prohibit discrimination in private educational institutions that claimed the tax exemption. Nothing in the tax emption enacted in 1935 indicates it was for the benefit of public school districts. In 1958, the Legislature moved this prohibition against discrimination in "education corporations" to Section 296(4) of the Executive Law, but it kept the

37 restrictive language "which holds itself out to be non-sectarian and exempt from taxation." Chapter 960 of the Laws of 1958, at 1605 (copy attached). If the Legislature had intended Section 296(4) to apply to school districts, it could simply have used the term "school district," or a "municipal corporation," as opposed to "education corporation" when it inserted the provision into the Human Rights Law in The Legislature knows how to specify that legislation covers school districts. The Legislature specifically prohibited racial discrimination in "any public school in the state of New York" when it adopted Section 3201(1) of the Education Law in N.Y. Education Law 3201(1) (emphasis added). When it originally enacted the provision that is now part of Section 296(4) in 1935, the Legislature was clearly seeking to cover private educational institutions as it acted pursuant to its authority over tax exempt organizations and used the term "education corporation." The Legislature also knows how to make sure that the antidiscrimination provisions in the Human Rights Law apply to both public and private entities. For example, both Section 296(15) and Section 296(16) prohibit certain "discriminatory practices" by "any person, agency, bureaus, corporation or association, including the state and any political subdivision thereof." In enacting Section 296(4), the Legislature chose not to include such language, and tied jurisdiction to tax exempt "education corporations." Presumably, the Legislature

38 was aware in 1958, when it moved the prohibition against discrimination in nonsectarian tax exempt schools to the Human Rights Law that it had banned racial discrimination in public schools in 1947, and that public schools were under the general management of the State Education Department. N.Y. Education Law 101. That the Human Rights Law is to be liberally construed does not mean the Court should ignore the words used in the statute. See,~, Enright v. Eli Lilly & Co., 77 N.Y.2d at 385 n.l (remedial statutes "should be 'liberally construed to effectuate their aims'... But even a remedial statute must be given a meaning consistent with the words chosen by the Legislature."). Quite simply, the Legislature used the term "education corporation," and has defined that term. School districts are expressly defined as "municipal corporations," and have been such for as long as Section 296(4) and its predecessors have existed. The Third Departm.ent relied heavily on its belief that the Legislature would not have intended the remedies in Section 296(4) of the Human Rights Law only for the "relatively miniscule percentage" of students in private schools. The fact that Section 296(4) does not apply to public school districts does not leave public school students without a remedy for alleged racial harassment by fellow students. The Legislature expressly outlawed discrimination in the public schools in Section 3201 of the Education Law. The Appellate Division's analysis of the