Board of Ed., Cent. School Dist. No. 1, Towns of Conklin, Binghamton, Kirkwood and Vestal, Broome County v. State Div. of Human Rights

• Decision Date: 08 November 1973
• Citation: 42 A.D.2d 473,349 N.Y.S.2d 25
• Parties: , 7 Fair Empl.Prac.Cas. (BNA) 104, 6 Empl. Prac. Dec. P 8942 In the Matter of BOARD OF EDUCATION, CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF CONKLIN, BINGHAMTON, KIRKWOOD AND VESTAL, BROOME COUNTY, New York, Respondent, v. STATE DIVISION OF HUMAN RIGHTS et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 25

349 N.Y.S.2d 25

42 A.D.2d 473, 7 Fair Empl.Prac.Cas. (BNA) 104,

6 Empl. Prac. Dec. P 8942

In the Matter of BOARD OF EDUCATION, CENTRAL SCHOOL DISTRICT NO. 1, TOWNS OF CONKLIN, BINGHAMTON, KIRKWOOD AND VESTAL, BROOME COUNTY, New York, Respondent, v. STATE DIVISION OF HUMAN RIGHTS et al., Appellants.

Supreme Court, Appellate Division, Third Department.

Nov. 8, 1973.

Henry Spitz, General Counsel for Div. of Human Rights, New York City (Lawrence Kunin, Croton-On-Hudson, of counsel), for appellants.

Shaw, Esworthy, O'Brien & Crowley, Binghamton (Frank C. Shaw, Binghamton, of counsel), for respondent.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, KANE and REYNOLDS, JJ.

KANE, Justice.

This is an appeal from a judgment of the Supreme Court at Special Term, entered April 6, 1973 in Broome County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to restrain the New York State Division of Human Rights from entertaining jurisdiction in a matter involving the dismissal of a probationary teacher pursuant to section 3012 (subd. 1, par. (a)) of the Education Law.

Jane P. Sivers was hired by respondent as a second grade teacher in September, 1970. On March 16, 1972, while on probationary status, she was dismissed by the school board on the recommendation of the superintendent of schools. Thereafter she filed a complaint with the State Division of Human Rights alleging that she had been unlawfully discriminated against because of her religion and natural origin. After the Division of Human Rights accepted the complaint and began an investigation, respondent brought the within proceeding to restrain appellants from proceeding with the matter.

A teacher has no vested rights during the probationary period, and service may be discontinued without a hearing and without giving the reasons for the dismissal ^* (Matter of Butler v. Allen, 29 A.D.2d 799, 287 N.Y.S.2d 197; Matter of Pinto v. Wynstra, 22 A.D.2d 914, 255 N.Y.S.2d 536; Matter of McMaster v. Owens, 275 App.Div. 506, 90 N.Y.S.2d 491). Unfettered as this power of a board of education may appear (Education Law, § 3012), it is, however, circumscribed by the equal protection clause of our State Constitution (N.Y.Const. art. I, § 11) and subject to the provisions of the Human Rights Law (Executive Law, art. 15, §§ 290--301). To hold that the State Division of Human Rights lacks jurisdiction to hold hearings and review the action of a board of education after a complaint of an alleged discriminatory practice, would be to deny protection to, if not the existence of, the civil rights in question. Previous judicial constructions are consistent with this reasoning (Matter of Board of Higher Educ. of City of N.Y. v. Carter, 14 N.Y.2d 138, 250 N.Y.S.2d 33, 199 N.E.2d 141; Matter of Board of Educ. of Syracuse City School Dist. v. State Div. of Human Rights, 38 A.D.2d 245, 328 N.Y.S.2d 732). Although on a previous occasion this court cast doubt on the jurisdictional power of the Division, the Court of Appeals affirmed on the merits our holding that, if jurisdiction did exist, the record lacked sufficient evidence to find a violation of the Human Rights Law (Matter of Board of Educ. of City of Albany v. State Div. of Human Rights, 38 A.D.2d 657, 327 N.Y.S.2d 110, affd. 30 N.Y.2d 925, 335 N.Y.S.2d 681, 287 N.E.2d 376, mot. to clarify den. 31 N.Y.2d 662, 336 N.Y.S.2d 899, 288 N.E.2d 802).

Further evidence of the absence of absoluteness of this power to dismiss a probationary teacher, although it is indeed very broad, is demonstrated in the...