Chang v. University of Rhode Island, 76-43-M

• Decision Date: 18 July 1977
• Docket Number: No. 76-43-M,76-43-M
• Parties: , 15 Fair Empl.Prac.Cas. (BNA) 664, 14 Empl. Prac. Dec. P 7722 Lucy Peng-Fei CHANG v. UNIVERSITY OF RHODE ISLAND. P.
• Court: Rhode Island Supreme Court

Page 925

375 A.2d 925

118 R.I. 631, 15 Fair Empl.Prac.Cas. (BNA) 664,

14 Empl. Prac. Dec. P 7722

Lucy Peng-Fei CHANG v. UNIVERSITY OF RHODE ISLAND.

No. 76-43-M.P.

Supreme Court of Rhode Island.

July 18, 1977.

In the fall of 1970, the newly-appointed dean of the college undertook to upgrade the faculty in an effort to obtain accreditation for the college's graduate program. To that end, in December 1970, he advised the 11 college faculty members (9 men and 2 women) who neither held nor were in the process of obtaining doctoral degrees that they would not be promoted or retained at the conclusion of their 1-year contracts. The complainant, who was one of this group, advised the dean that she had no intention of obtaining her Ph.D.; nevertheless, after failing to find a suitable replacement for her for the coming year, he offered, and she accepted, a final 1-year contract. ¹ In December 1971, in accordance with the provisions of the University Manual, complainant was notified in writing that she would not be retained after her contract expired, and in June 1972 her employment was formally terminated. Thereafter, she filed a complaint with the Commission for Human Rights (the commission) alleging that the university had discriminated against her because of her race and sex. After a preliminary investigation of the charges and an unsuccessful attempt at conciliation, the commission issued a complaint against the university on June 28, 1973, charging unlawful discrimination against complainant on the basis of both race and sex.

At the opening of and during the hearings that followed, the university moved to dismiss the complaint for lack of jurisdiction. Those motions were denied, and on January 6, 1975, the commission, in a written decision, concluded (1) that it had jurisdiction over the university; (2) that there was no evidence of racial discrimination; (3) that sex discrimination did not become illegal in this state until May 13, 1971; and (4) that certain actions taken by the university after that date had discriminated against complainant because of her sex. ² Orders appropriate to those findings were entered, and the university then sought judicial review in the Superior Court, ³ complainant was granted leave to intervene in the review proceedings. The trial justice, without reaching the merits of the controversy, concluded that

"during the period in question, the Fair Employment Practices Act had no application to the University and the Commission had no jurisdiction to investigate, approve, modify, revise, sanction or condemn the employment practices of the University."

Having thus concluded that there was a jurisdictional deficiency, the trial justice quashed the commission's decision and remanded the case with directions that the complaint be dismissed. We granted certiorari. Chang v. University of Rhode Island, R.I., 351 A.2d 601 (1976).

We begin with a brief description of the measures taken in this state to ensure equal employment opportunities. In 1949, the General Assembly enacted the Fair Employment Practices Act (the Act), P.L.1949, ch. 2181 (codified in amended form at G.L.1956 (1968 Reenactment) title 28, ch. 5). In pertinent part, the Act (1) declared it to be an unlawful employment practice for any "employer" to refuse to hire an applicant for employment or to discharge or discriminate against any employee because of "race or color, religion, or country of ancestral origin * * * "; (2) defined the term "employer" to exclude, among others, any "educational * * * corporation or association not organized for private profit * * * "; and (3) established the commission ⁴ and charged it with, inter alia, receiving, investigating and passing upon charges of unlawful employment practices.

On May 13, 1971, the Act was amended to prohibit discrimination in employment on account of sex as well. Public Laws 1971, ch. 35, § 1 (codified at § 28-5-5.1). A that time, however, as well as when the alleged discriminatory acts against complainant occurred, the Act's definition of an "employer" still excluded nonprofit educational institutions. Not until 1974 long after the events giving rise to this litigation took place did the Legislature abrogate that exclusion. Public Laws 1974, ch. 259, § 1 (codified at § 28-5-6(B)). ⁵

In seeking to establish the commission's jurisdiction over the university in the face of the pre-1974 statutory exclusion, complainant relies primarily on Executive Order No. 27, promulgated by Governor Licht on May 16, 1972. This was one of a series of executive orders issued by three governors between 1964 and 1974, all mandating nondiscrimination by state agencies and establishing procedures to effect that mandate, ⁶ and was the first such order to be issued after the enactment of the 1971 amendment prohibiting sex discrimination in employment. It declared that any state employee claiming to have been discriminated against could seek redress by filing a complaint with the commission, which was ordered to investigate and act thereon in accordance with its regular procedures. ⁷

Employees of the university are, of course, employees of the state, and, to the extent that Executive Order No. 27 purported to give the commission jurisdiction over the employment practices of the university, it directly conflicted with the pre-1974 provision of the Act specifically excluding nonprofit educational institutions from its coverage. Thus, the issue in this case is whether the governor of this state, notwithstanding his limited power under our constitution, Gorham v. Robinson, 57 R.I. 1, 17, 186 A. 832, 841 (1936), can by executive order override a directive of the Legislature, the body to which the constitution assigns all powers of government not given to either the executive or the judicial department and not prohibited by the constitution itself. City of Providence v. Moulton, 52 R.I. 236, 241, 160 A. 75, 77 (1932). More narrowly and simply put, the issue is, which prevails Executive Order No. 27, which extends the benefits of the Act to all state employees, or the pre-1974 provision of the Act that specifically excludes nonprofit educational institutions from its operative effect?

Although no authority bearing directly on this issue has been called to our attention, complainant comments in her brief that the relevant provisions of our constitution have the same meaning as the comparable provisions of the Federal Constitution, and she suggests that "federal cases dealing with executive power establish standards by which to measure the power of the Governor to issue executive orders on Fair Employment Practices."

That suggestion commends itself to us, and accordingly we look first to the concurring opinion of Mr. Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 634, 72 S.Ct. 863, 869, 96 L.Ed. 1153, 1198 (1952), which has frequently been cited and which is relied upon by the parties to this suit as providing an appropriate analytical framework for determining the extent of executive power. In that opinion, Mr. Justice Jackson, though acknowledging that his groupings may be somewhat oversimplified, distinguishes three kinds of "practical situations in which a President may doubt, or others may challenge, his powers * * *." Id. at 635, 72 S.Ct. at 870, 96 L.Ed. at 1199. First, the President may act pursuant to congressional authorization, express or implied; in such cases "his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." Id. Second, the President may act in the absence of either a congressional grant or denial of authority; in doing so "he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Id. at 637, 72 S.Ct. at 871, 96 L.Ed. at 1200. Finally, the President may take measures that are incompatible with the express or implied will of Congress; but when he does so

"his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." Id. at 637-38, 72 S.Ct. at 871, 96 L.Ed. at 1200.

Clearly this case falls squarely within the third grouping, for Executive Order No. 27, to the extent that it purported to subject the university to the commission's jurisdiction, conflicted with the express will of the Legislature, which as of that date excluded nonprofit educational institutions from the definition of the term "employer." Consequently, under Justice Jackson's analysis, the order can be supported only if regulation of the university's employment practices was exclusively within the executive domain and beyond the control of the Legislature. Id. at 640, 72 S.Ct. at 872, 96 L.Ed. at 1201.

But that obviously is not the case. Article XII, § 1 of the Rhode Island Constitution ⁸ "expressly and affirmatively reserves to the legislature sole responsibility in the field of education * * *." Royal v. Barry, 91 R.I. 24, 31, 160 A.2d 572, 575 (1960) (emphasis added). In the exercise of that constitutional responsibility, the Legislature delegated exclusive authority and control over state educational institutions and functions to the Board of Regents for Education, G.L.1956 (1969 Reenactment) title 16, ch. 49, as enacted by P.L.1969, ch. 231, § 3, including the power "to employ presidents, professors, instructors, and other employees, and to determine their salaries * * *." Section 16-31-5. Thus, when Executive Order No. 27 was issued, the Board of Regents possessed the exclusive right,...