Doe v. Rosa

• Decision Date: 17 November 1993
• Citation: 606 N.Y.S.2d 522,159 Misc.2d 694
• Parties: , 88 Ed. Law Rep. 768 In the Matter of Jane DOE, Petitioner, v. Margarita ROSA, as Commissioner of the Division of Human Rights of the State of New York, and State University of New York at Buffalo, Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. .A.S. Part 8
• Court: New York Supreme Court

Page 522

606 N.Y.S.2d 522

159 Misc.2d 694, 88 Ed. Law Rep. 768

In the Matter of Jane DOE, Petitioner, v. Margarita ROSA, as Commissioner of the Division of Human Rights of the State of New York, and State University of New York at Buffalo, Respondents For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court, New York County I.A.S. Part 8.

Nov. 17, 1993.

Evan Wolfson, Lambda Legal Defense & Education Fund, Inc., assisted by Carey Wagner and Timothy W. Reinig, Robinson Silverman Pearce Aronsohn & Berman, New York City, for petitioner.

Sheila A. Donahue, New York City, for State Div. of Human Rights.

Robert Abrams, Atty. Gen., Marion R. Buchbinder, Asst. Atty. Gen., New York City, for State University at Buffalo.

DIANE A. LEBEDEFF, Justice.

This petition raises the issue of military employment recruitment at a law school. Challenged here is an order of the Commissioner of Human Rights dismissing a law student's complaint and reversing an underlying determination that the Law School of the State University of New York at Buffalo Corp. ("University") had engaged in an improper discriminatory action when permitting the use of law school placement services by an employer which discriminates upon the basis of sexual orientation.

There is no dispute that the military currently engages in sexual orientation discrimination in its employment practices, not welcoming within its active ranks gay men, lesbians, and bisexuals. Indeed, Department of Defense Directive 1332.14 states that "[h]omosexuality is incompatible with military service [and] ... seriously impairs the accomplishment of the military mission." The policy is the subject of an on-going national policy and legal debate ¹ and, on the local level, an increasing number of localities provide a measure of protection against sexual orientation discrimination. ²

In this case, the Law School of the State University of New York at Buffalo allowed military recruiters the use of its placement services and university facilities. As described in a comment by Christopher J. Kalil, SUNY Buffalo & Military Recruiters: Funding Unconstitutional Conditions?, 39 Buff.L.Rev. 891 (Fall, 1991), in 1983, the University's Board of Trustees originally adopted an anti-discrimination policy shortly before the signature by Governor Mario Cuomo of a similar policy embodied in Executive Order No. 28 (9 NYCRR 4.28). In 1988, the Law Faculty separately adopted a similar resolution. Notwithstanding the then existing Governor's Executive Order, in 1989, the University's president is reported to have placed the University rules in abeyance and determined that the Law Faculty acted in excess of its powers.

The petitioner, a lesbian, then filed a complaint charging the University with a discriminatory practice, claiming a violation of the Governor's Executive Order No. 28.1 (9 NYCRR § 4.28), which provides that "no State agency or department shall discriminate on the basis of sexual orientation against any individual in the provision of any services or benefits" and directs such complaints are subject to determination by the State Division of Human Rights (see, as to Division procedures, N.Y.S. Register, March 2, 1988, p. 96). After an investigation, an administrative determination was made that the military was discriminatory in its employment policies, that the University's provision of placement services to the military was a provision of "services and benefits" of a state agency to an employer within the meaning of the Executive Order, and that neither state nor federal law compelled an exception for a discriminatory military recruiter. The Commissioner's reversal of that decision rejected only the last portion of the finding and held that both state and federal law required the University to provide access to the military for recruitment.

This proceeding, brought pursuant to Article 78 of the CPLR, ensued. In an interim order, the court directed that the University be joined as a party. Both the Division of Human Rights and the University urge that the Commissioner's decision was proper.

State Law

The Commissioner held that the military must be permitted access to the University, relying upon an interpretation of section 2-a of the Education Law which states, in relevant part, as follows:

"... if a trustee, president, principal, or officer of any institution belonging to the University of the State of New York, or a board of education of any public school ... receiving state funds ... permits access to school buildings, school grounds or other school property to persons who inform pupils of educational, occupational or career opportunities, such [official] shall provide ... access to such school property on the same basis for official representatives of the state militia and the armed forces of the United States for the purposes of informing pupils of educational, occupational or career opportunities within the state militia or armed forces of the United States."

This provision has been addressed by one court within New York State.

In Lloyd v. Grella, 151 Misc.2d 412, 580 N.Y.S.2d 988 (Sup.Ct., Monroe Co. 1992, Affronti, J.), aff'd, 190 A.D.2d 1026, 594 N.Y.S.2d 1007 (4th Dept.1993), the court was confronted with an action taken by the Rochester City School Board which, as the court determined, was designed to bar military recruiters from city schools because of the armed forces' policy of excluding homosexuals from military service. Although the resolution contained a general anti-discrimination policy, including sexual orientation, it also placed a responsibility on schools to notify students of the armed forces' discriminatory policies and focused upon the above-quoted text of the Department of Defense Directive 1332.14. As fairly characterized by the trial court, "the dominant language of the resolution and its heavy-duty emphasis on military discrimination singles out the Armed Forces as the prime target or focus of the proposal" (151 Misc.2d at 414). After reviewing the legislative history of section 2-a of the Education Law, the trial court concluded that the Board's actions "along with the chastising of the military's discriminatory practices" did not "provide the military the same access to school property as other recruiters" and was an action taken in violation of section 2-a (151 Misc.2d at 418, 580 N.Y.S.2d 988). In this instance, unlike Lloyd v. Grella, supra, there is no possibility that the anti-discrimination policy set forth in the Executive Order--which, in fact, predated the enactment of section 2-a--in whole or in part was directed at impeding military recruitment and is anything other than what it purports to be, an evenly applicable anti-discrimination policy.

More on point and similar to the facts here is Gay and Lesbian Law Students Association at University of Connecticut School of Law v. Board of Trustees, University of Connecticut, n.o.r., 1992 WL 310610 (Conn.Super.Ct., J.D. Hartford-New Britain, 1992, Allen, J.), which interpreted a statute parallel to the Education Law provision, Connecticut General Statutes § 10a-149a, which provides as follows:

"... each constituent unit of the state system of higher education and any private college or university which receives state funds shall ... provide the same directory information and on-campus recruiting opportunities to representatives of the armed forces of the United States of America and state armed services as are offered to nonmilitary recruiters or commercial concerns." (Emphasis added.)

There, plaintiffs challenged the military's exemption from the Law School's non-discrimination placement policy. The court directed that the law school refrain from any special treatment of military recruiters by allowing them to recruit unlike any other employer who discriminates on the basis of sexual orientation, and found the university practice was contrary to the "plain meaning" of the statute.

This court finds, as did the Connecticut court, that the plain reading of section 2-a of the Education Law permits application of a uniform anti-discrimination policy by an educational institution to which the statute applies. The legislative history gives no clear support for abandoning a plain language analysis for although, as recited by the Commissioner, legislative comments are indicative of intention to give preferential treatment to military recruiters, other material indicates the understanding that the legislation was to require an even-handed treatment of all employers (compare remarks of Assemblypersons E. Sullivan and Flanagan, with the statement of Assembly Majority Leader's counsel and memorandum of the Board of Education of the City of New York, all in Bill Jacket, L.1984, Ch. 786).

Given the foregoing, the court holds that the Commissioner was in error when determining that section 2-a of the Education Law, which mandates military recruitment access "on the same basis " as other employers, would be violated by applying to military recruiters the same policies applicable to other potential employers.

Federal Law

The Commissioner also concluded, and found it critical, that the military policy of exclusion based upon sexual orientation was lawful under federal law, and adopted the view that the Executive Order could not prohibit "lawful" discrimination. This conclusion is a misapprehension of a dispositive factor for it ignores a direct violation of the Executive Order by the University, notwithstanding that the University is a part of the executive branch of government.

The focus must be upon the University's compliance with the Executive Order. The Governor's policy was clear and it was as head of the executive branch of government that he addressed the "complex societal and governmental issues" involved in an anti-discrimination policy (see, N.Y. Const. Art. IV, § 1, and quoting New York State Inspection, Security and Law Enforcement Employees, ...