Board of Higher Ed. of City of New York v. Carter

• Decision Date: 02 April 1964
• Citation: 14 N.Y.2d 138,250 N.Y.S.2d 33
• Parties: , 199 N.E.2d 141, 9 Fair Empl.Prac.Cas. (BNA) 1225 In the Matter of BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK, Respondent- Appellant, v. Elmer A. CARTER et al., Constituting the State Commission against Discrimination, Appellants-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 33

250 N.Y.S.2d 33

14 N.Y.2d 138, 199 N.E.2d 141, 9 Fair

Empl.Prac.Cas. (BNA) 1225

In the Matter of BOARD OF HIGHER EDUCATION OF the CITY OF NEW YORK, Respondent- Appellant, v. Elmer A. CARTER et al., Constituting the State Commission against Discrimination, Appellants-Respondents.

Court of Appeals of New York.

April 2, 1964.

Henry Spitz, Solomon J. Heifetz and Joan Offner, New York City, for appellants-respondents.

Leo A. Larkin, Corporation, Counsel (David W. Peck, Morris Handel and Hugh J. O'Rourke, New York City, of counsel), for respondent-appellant.

Charles A. Brind, Jr., John P. Jehu, Elizabeth M. Eastman, George B. Farrington and Louis H. J. Welch, Albany, for Board of Regents of the University of the State of New York and another, amici curiae.

Robert M. Benjamin, Frank E. Karelsen and Fred N. Fishman, New York City, for Public Education Association, amicus curiae.

Robert L. Carter, Maria L. Marcus and Jawn A. Sandifer, New York City, for the National Association for the Advancement of Colored People, amicus curiae.

Edward D. Burns and Thomas A. Bolan, New York City, for Catholic Teachers Association of the Diocese of Brooklyn, Inc., amicus curiae.

Robert P. whelan and John F. O'Shea, New York City, for Bay Ridge Catholic Guild, Inc., amicus curiae.

BERGAN, Judge.

The interdiction of discrimination in civil rights based on race or creed is a fundamental public policy of New York, articulated in both the constitutional and the statutory law of the State. The controversy in this case arises from a dispute between two public authorities as to which shall have the right to enforce the law against discrimination in employment in the public schools.

The Commission for Human Rights assert its jurisdiction over enforcement in this area generally; the Board of Higher Education of the City of New York asserts its exclusive right of enforcement in those public educational institutions within its control and argues that enforcement in the public schools generally lies only within the jurisdiction of the Regents and the State Commissioner of Education.

Whichever of these agencies performs the task of enforcement, we hold no doubt it will be faithfully and impartially executed. The problem involves a search of the wellsprings of power which underlie the jurisdiction of the two competing public authorities; and the choice between them must, in the end, depend on the way a statute is to be read.

The statute itself (Executive Law, Consol.Laws, c. 18, art. 15, the Law Against Discrimination (L.1945, ch. 118)) carries out a constitutional provision proposed by the Convention of 1938, which prohibits discrimination in civil rights 'because of race, color, creed or religion'. That prohibition attaches to 'the state or any agency or subdivision of the state' (N.Y.Const. art. I, § 11).

The Law Against Discrimination establishes the respondent Commission for Human Rights (Executive Law, § 290), formerly, and at the time this proceeding was instituted, called the Commission against Discrimination. Its power over the subject of discrimination prohibited by the Constitution is cast in broad terms and in language quite plenary in its sweep.

The commission shall have 'power', runs the statutory text, 'to eliminate and prevent discrimination in employment' and in other stated subjects; 'and the commission established hereunder is hereby given general jurisdiction and power for such purposes' (§ 290). The purpose of the statute is 'in fulfillment of the provisions of the constitution of this state concerning civil rights' (§ 290).

If the constitutional interdiction of discrimination in civil rights by the State or any State agency or subdivision be kept in mind and read with the provisions of section 291 of the statute which declares the opportunity for employment 'without discrimination because of race, creed, color or national origin' is 'a civil right', it becomes clear that the 'general jurisdiction and power' of the commission to 'eliminate and prevent discrimination in employment' attaches to all public agencies; and it would be reasonable to expect that all public agencies would yield readily to a legislative policy thus distinctly laid down.

The petitioner Board of Higher Education of the City of New York is a public agency created by the Legislature to administer that part of the city school system which is of collegiate grade and such units are made part of the common school system. (Education Law, Consol.Laws, c. 16, §§ 6201, 6202.) Its administration of the city colleges is a State function and the board itself is a State agency. (Metzger v. Swift, 258 N.Y. 440, 180 N.E. 112; Nelson v. Board of Higher Educ. of City of N. Y., 263 App.Div. 144, 31 N.Y.S.2d 825 affd. 288 N.Y. 649, 42 N.E.2d 744.)

The board submits that the subject of discrimination because of race or creed in its employment practices is outside the 'general jurisdiction and power' of the commission. Based on a reading of the definitions set out in section 292 of the statute, its main argument is that the 'Board is not an 'employer' under the applicable law; hence the Commission has no jurisdiction over the Board'.

This point becomes the keystone of the Board's contention. The pertinent statutory language appearing in section 292, headed 'Definitions', is in paragraph 5, which reads this way: '5. The term 'employer' does not include a club exclusively social, or a fraternal, charitable, educational or religious association or corporation, if such club, association or corporation is not organized for private profit, nor does it include any employer with fewer than six persons in his employ.'

The Board of Higher Education of the City of New York does not fit readily, or at all, into this exclusory list of who is not an 'employer'. All are private organisms and none public agencies.

The meaning of 'educational' is affected by the contextual adjectives which run with it, i. e., 'fraternal', 'charitable' and 'religious', which could sensibly apply only to private, and not to public agencies. Such terms as these, used together, serve to limit the sense in which 'educational' serves the text. (United States v. Baumgartner, 259 F. 722, 724.)

The term 'not organized for private profit', which modifies the list in its entirety, could not apply to the Board of Higher Education or to the public school system which under no conceivable circumstances could be thought to be 'organized' for a 'private profit'. The list of exclusion must relate, then, to privately organized educational corporations from which no profit was intended in their organization.

The Law Against Discrimination was recommended to the Legislature by the New York State Temporary Commission against Discrimination, an agency created by chapter 692 of the Laws of 1944, in a report which contained the proposed statutory text and a study of the problem of discrimination and its background (N.Y.Legis.Doc., 1945, No. 6).

The comment of the Temporary Commission on the scope of the word 'employer' used in the statute suggests that it was intended to be read to include public employment. The report noted that 'We have found no definition of the word 'employer' as clear and comprehensive as the word itself in its accepted and dictionary meaning' (supra, p. 28). It was concluded, in view of the constitutional mandate, that 'employment by government is covered' (p. 28).

If the Board of Higher Education is right in believing that the Legislature intended to carve it out, in particular, and other public school agencies as well, from the area of the commission's general power to deal with constitutionally prohibited discrimination, it would be unlikely that the statutory draftsmen would attempt to achieve this purpose by defining the Board of Higher Education but of being an 'employer'. Government 'is covered' within the word 'employer's of the report noted (N.Y.Legis.Doc., 1945, No. 6, supra, p. 28).

It could, of course, readily have been provided that jurisdiction to enforce the constitutional mandate would be vested only in the Regents or the State Commissioner of Education, and thus exempt the board from the general jurisdiction of the commission.

That would have been the normal way to do this. But with a constitutional prohibition against discrimination affecting the Board of Higher Education as well as all other public agencies of the State, it would be unlikely that the Legislature in dealing with discrimination would have withdrawn the board or the public schools from the authority of the commission by so awkward and inconsistent a mechanism as providing that in respect of their personnel they were not 'employers'.

Here, unlike the assortment of private groups, such as fraternal and religious, with which the board seeks to identify itself, the term 'civil rights' in the sense used in the Constitution has particular pertinency to public employment. We are of opinion that the definitions set up by subdivision 5 of section 292 do not effectively take petitioner away from the general jurisdiction of the commission.

The board and some of the amici briefs suggest that the Temporary Commission which prepared the law intended that the school authorities should have exclusive jurisdiction to prevent discrimination in employment in the public school system. A section of its report is devoted to education (N.Y.Legis.Doc., 1945, No. 6, supra, pp. 40-47) and sets out the powers of the Board of Regents and the State Department of Education over public and other education (N.Y.Const. art. V, §§ 2, 4; art. XI, § 2; former Education Law, §§ 20, 46, 94, 95, 96 ¹).

The report in this section states:

'Hence, the Board of Regents and the Department of Education are unique in that they possess administrative, executive, legislative, and judicial power over 'all of the educational work of the State.' Thus they constitute in the field of education an existing state agency,...