Lloyd v. Grella

• Decision Date: 03 May 1994
• Citation: 634 N.E.2d 171,611 N.Y.S.2d 799,83 N.Y.2d 537
• Parties: , 634 N.E.2d 171, 64 Fair Empl.Prac.Cas. (BNA) 1770, 90 Ed. Law Rep. 1202 In the Matter of Jean M. LLOYD, as Parent and Natural Guardian of David J. Lloyd, an Infant, Respondent, v. Karen GRELLA et al., as Commissioners of Schools for the Rochester City School District Board of Education, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 799

611 N.Y.S.2d 799

83 N.Y.2d 537, 634 N.E.2d 171,

64 Fair Empl.Prac.Cas. (BNA) 1770,

90 Ed. Law Rep. 1202

In the Matter of Jean M. LLOYD, as Parent and Natural

Guardian of David J. Lloyd, an Infant, Respondent,

v.

Karen GRELLA et al., as Commissioners of Schools for the

Rochester City School District Board of Education,

Appellants.

Court of Appeals of New York.

May 3, 1994.

Donald T. Schmitt and Adam D. Kaufman, Rochester, for appellants.

Regan & Regan, P.C., Rochester (John M. Regan, Jr., of counsel), for respondent.

Arthur Eisenberg, Ruth E. Harlow and William B. Rubenstein, New York City, of the Pennsylvania and Dist. of Columbia Bars, admitted pro hac vice, for American Civ. Liberties Union and another, amici curiae.

John D. Feerick, Janet Gallagher, Arthur S. Leonard, Sara L. Mandelbaum and James M. Williams, New York City, for The Association of the Bar of the City of New York, amicus curiae.

Curtis J. Berger, Carl C. Monk and Victor L. Streib, New York City, of the Dist. of Columbia Bar, admitted pro hac vice, for the Association of American Law Schools, amicus curiae.

Evan Wolfson, Robinson Silverman Pearce Aronsohn & Berman, New York City (Carey Wagner and Timothy W. Reinig, of counsel), and Harry B. Bronson, Rochester, for Lambda Legal Defense & Educ. Fund, Inc., and another, amici curiae.

Jay Worona and Shari Greenleaf, Albany, for the New York State School Boards Ass'n, Inc., amicus curiae.

William E. Fay, III, New York City, for Parents for the Restoration of Values in Educ., amicus curiae.

Deborah A. Batts, Mary C. Daly, James L. Kainen and Russell G. Pearce, New York City, for The Soc. of American Law Teachers, amicus curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

The Rochester City School Board resolved that employers, including the military, who discriminate on the basis of sexual orientation or other reasons shall be barred from school site student recruitment. Education Law § 2-a grants military recruiters access to educational venues "on the same basis" as all other employment recruiters.

Petitioner Lloyd, on behalf of her son who has graduated from the Rochester schools, sued, urging that Education Law § 2-a invalidates the Rochester City School Board Resolution. The Supreme Court, whose judgment and opinion were adopted by the Appellate Division, agreed and granted the petition, in effect allowing unqualified military access. This Court granted leave to appeal and now reverses and dismisses the petition. We hold that Education Law § 2-a does not override the local Resolution.

I.

In August 1984, Education Law § 2-a was enacted to ensure equal access for the military to educational institutions so that students would be able to acquire direct information about military employment opportunities (L.1984, ch. 786). The law was enacted to overcome the particular discriminatory exclusion of the military from schools for recruitment purposes. Education Law § 2-a states in part:

"Notwithstanding any other provision of law to the contrary, if a trustee, president, principal, * * * or a board of education * * * permits the release of directory information relating to pupils or permits access to school buildings, school grounds or other school property to persons who inform pupils of educational, occupational or career opportunities, such trustee, president, principal, officer, board or administrator shall provide access to directory information relating to pupils and 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 purpose of informing pupils of educational, occupational or career opportunities within the state militia or armed forces of the United States" (emphasis added).

In December 1991, the Rochester City School District Board of Education adopted a Resolution denoted as Policy 91-92:519(6). Undeniably, the Policy is directed largely at the military's open, long-standing and uncontroverted discriminatory policies. Its interdiction of the military's recruitment opportunities at school sites includes in relevant parts:

"2. No organization shall be permitted in any City School District building for the purpose of recruiting City School District students if such organization has a stated policy which discriminates against any person on the basis of race, color, religion, handicap, sex, creed, political beliefs, age, economic status, or sexual orientation, until such time as these discriminatory policies are discontinued" (Resolution: Policy 91-92:519[6][p 2].)

"8. All secondary schools have the responsibility of notifying students annually of the Armed Forces policy of discriminating against persons on the basis of sexual orientation, as stated in Department of Defense Directive 1332.14, or as subsequently amended or modified, which provides, in pertinent part, that: 'Homosexuality is incompatible with military service.' " (Resolution: Policy 91-92:519[6][p 8].)

"9. This policy does not prohibit the dissemination of information to students by school counselors about the Armed Forces and how to contact the Armed Forces about career opportunities.

"The notice requirement of paragraph '8' shall be provided to students through inclusion in individual building handbooks and through written notification distributed to students by building school counselors, simultaneous with the provision of information about the Armed Forces" (Resolution: Policy 91-92:519[6][p 9].)

The Policy gives direct emphasis to the salient portions of the Department of Defense Directive 1332.14 (32 CFR part 41, Appendix A, part 1[H], which include the assertion that "[h]omosexuality is incompatible with military service" (Resolution, op. cit., [p 8]. The Rochester Resolution does, also, generally bar any organization that has a stated policy that discriminates against protected classifications.

Parent and natural guardian Lloyd, on her son's behalf, seeks a judgment compelling the officials of the Rochester school system to allow mandated duties and admit military employment recruiters to their school sites. Supreme Court granted the petition, holding in part:

"Respondents' belief that they possess discretion to impose preconditions or exclusionary criteria for access to school property by the military is without legal justification. Education Law § 2-a does not permit school boards such far-reaching clout or authority, which was clearly not contemplated or intended by the original drafters of the law. * * * Certainly, the establishment of restrictions and criteria of the magnitude of those imposed by the Board in this instance, along with the chastising of the military's discriminatory practices, does not equate with the setting of permissible educational policy by local boards of education.

"Upon the foregoing, this court concludes and determines that the Board's action in approving the disputed resolution on December 5, 1991, and specifically paragraph No. 2 therein, as it directly affects and impacts the military, was preempted by, and in violation of Education Law § 2-a. In this respect, therefore, the legal relief requested by the petitioner is granted. The Board of Education must perform the duties imposed upon it by law and provide the military the same access to school property as other recruiters are afforded for purposes of informing students of 'educational, occupational or career opportunities' (Education Law § 2-a), regardless of the military's policy concerning homosexuals" (151 Misc.2d 412, 418-419, 580 N.Y.S.2d 988 [emphasis in original].

The Appellate Division affirmed "for reasons stated in decision at Supreme Court" (190 A.D.2d 1026, 594 N.Y.S.2d 1007).

The issue is whether Education Law § 2-a mandates unqualified military access, thus negating the Rochester Resolution. The Court is unanimous that the Resolution would have to yield should it conflict with higher organic law, the State statute (see, Board of Educ. v. Licata, 42 N.Y.2d 815, 396 N.Y.S.2d 644, 364 N.E.2d 1337). We hold, however, that the statute does not have that effect. Rather, it specially protects military recruiters by granting them equal access. It does not correspondingly divest local school boards of their traditional discretionary powers to adopt protocols barring stated discriminatory policies and practices such as are at issue in this case. The use of the phrase "on the same basis" in Education Law § 2-a is synonymous with "equal access", not unqualified access. Thus, mandamus does not lie to void the Resolution-Policy, because Education Law § 2-a does not dictate the unequivocal and exclusive preeminence that the prior courts and the dissent would accord to it.

II.

Schools are allowed to establish policies applicable to all organizations desiring access to school facilities on a uniform basis. Education Law § 2-a was enacted to protect equal access by military recruiters, not give them unqualified or preferential access (compare, Matter of Doe v. Rosa, 159 Misc.2d 694, 606 N.Y.S.2d 522; see also, Gay & Lesbian Law Students Assn. at Univ. of Conn. v. Board of Trustees, Univ. of Conn., 1992 WL 310610 [Conn.Super.Ct., Oct. 14, 1992]. Rochester Policy 91-92:519(6) at issue here bars access to all recruiters when they fail to meet specified criteria tailored for the Rochester school system. The fact that it significantly targets a concededly discriminatory entity does not divest it of its uniform applicability.

We must also deal, however, with the question whether a policy that includes a special impact on military recruiters clashes with the intent of the Legislature promulgated in Education Law § 2-a. We think there is no such direct conflict and conclude that the school board here exercised a discretionary power to exclude all recruiters engaging in promulgated discrimination, as the still-evolving military policy does.

We acknowledge that our holding eliminates Education Law § 2-a as an...