Lloyd v. Grella

• Decision Date: 13 February 1992
• Citation: 151 Misc.2d 412,580 N.Y.S.2d 988
• Parties: , 73 Ed. Law Rep. 491 Jean M. LLOYD, As Parent and Natural Guardian of David J. Lloyd, An Infant, Petitioner, v. Karen GRELLA, Rachel Hedding, Catherine Spoto, Benjamin Douglas, Archie Curry, Michael Fernandez, and Frank Willis, as Commissioners of Schools for the Rochester City School District, Board of Education, Respondents.
• Court: New York Supreme Court

Page 988

580 N.Y.S.2d 988

151 Misc.2d 412, 73 Ed. Law Rep. 491

Jean M. LLOYD, As Parent and Natural Guardian of David J Lloyd, An Infant, Petitioner, v. Karen GRELLA, Rachel Hedding, Catherine Spoto, Benjamin Douglas, Archie Curry, Michael Fernandez, and Frank Willis as Commissioners of Schools for the Rochester City School District, Board of Education, Respondents.

Supreme Court, Monroe County.

Feb. 13, 1992.

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

Adam D. Kaufman, Rochester, for respondents.

New York Civil Liberties Union, Rochester, amicus curiae (Mark A. Drexler, of counsel).

FRANCIS A. AFFRONTI, Justice.

Presented for this Court's decision is the validity of the Rochester City School Board's unprecedented action barring military recruiters from city schools because of the armed forces' policy of excluding homosexuals from military service.

By Notice of Petition and Verified Petition, dated December 20, 1991, Jean M. Lloyd, as parent and natural guardian of David J. Lloyd, an infant, seeks a judgment, pursuant to CPLR Article 78, compelling the named Commissioners of Schools for the Rochester City School District, Board of Education (hereafter "Board"), to perform their lawful duties as prescribed by New York State Education Law, Sec. 2-a. Specifically, Mrs. Lloyd requests the Board be directed to provide access to the United States armed forces to school property, to inform students of educational, occupational, or career opportunities available in the military. The Respondents oppose the application, and have submitted a Verified Answer and supporting affidavit, dated January 16, 1992, with attached documentation, to support their position. Each party has provided a Memorandum of Law, and additionally, an Amicus Curiae brief, prepared by the New York Civil Liberties Union, in opposition to the Petition, has also been received and reviewed.

David J. Lloyd is a junior at Edison Technical and Occupational Education Center, a public high school operated by the City School District. He is due to graduate in June, 1993, and desires educational and other career opportunity information offered by the armed forces. All of the Respondents, except Benjamin Douglas, are currently duly elected commissioners of schools, and comprise the Rochester City School District, Board of Education.

On December 5, 1991, the Board approved and adopted a written Resolution or Policy, effective immediately, "to provide reasonable guidelines governing access by recruiters to City School District students and facilities," denoted as Policy 91-92:519(6). In relevant part, and forming the crux of this dispute, the Resolution states that "[n]o 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 (emphasis added), until such time as these discriminatory policies are discontinued." Among other provisions, the Resolution affords all recruiters from any organization the opportunity to conduct meetings during the school day with interested students, and makes pointed reference to the responsibility of secondary schools to annually notify students of the armed forces' policy of discriminating against persons on the basis of "sexual orientation." It also incorporates and calls direct attention to those salient portions of the Department of Defense Directive 1332.14, which states, among other verbiage, that "homosexuality is incompatible with military service." Conspicuously, therefore, 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.

Petitioner argues that the new Resolution has the bottom line effect of denying the military and their representatives access to school buildings for purposes of dispensing educational or career information to students, and consequently, is in violation of law. This claim is denied by the Respondents, who note that the Resolution was passed in the exercise of their discretion so that uniform treatment of all on-campus employment recruiters can be achieved. Basically, the Board argues, in corroborating its position, that no organization is permitted recruiting access if it has a stated policy of discrimination, including one based upon sexual orientation, until such policies are discontinued. Accordingly, it contends that the Resolution does not conflict with New York State Education Law, Sec. 2-a, which inarguably is the controlling statute governing this proceeding.

Ms. Lloyd rebuts the Board's belief by asserting that to read the law as Respondents do would completely eviscerate the protection that it was designed to give. In its significant aspect, Education Law, Sec. 2-a, requires that Boards of Education or their representatives, permit "access to ... school property" by United States armed forces personnel, to inform "pupils of educational, occupational or career opportunities ... on the same basis" (emphasis added) as any other recruiters. In essence, the Respondents reason that the statute's only goal was to prevent the exclusion of the military simply because it is the military, while maintaining as well, that military recruiters are indeed permitted access if they do not foster a stated policy of discrimination, such as the one pertaining to sexual orientation. Conversely, the Petitioner espouses that the statutory phrase "on the same basis" limits the Board's discretion concerning military recruiters by guaranteeing that the armed services are accorded the same facilities and type of access as any and all other recruiters. They acknowledge however, that the statute does permit a denial of access to military recruiters so long as all other employment recruiters are barred as well.

Preliminarily, and as previously ruled upon during oral arguments of counsel, "where ... a statutory or constitutional provision is the basis of the dispute or where discrete issues of law are present which do not involve matters of policy, review of a school board's decision by the courts is proper" (see Walker v. Bd. of Educ. of the Olean City School District, 78 A.D.2d 982, 983, 433 N.Y.S.2d 660) and "an appeal to the Commissioner of Education" is not required (see Stertzbach v. Bd. of Cooperative Educational Services, 117 A.D.2d 1012, 499 N.Y.S.2d 555; CPLR Sec. 7801(1); New York State Educ.Law, Sec. 310). In this regard, it is thus apparent that Respondents' threshold procedural objection addressing the jurisdiction of this Court based on Petitioner's alleged failure to exhaust her administrative remedies, is legally unmeritorious.

The Board is also of the opinion that a Writ of Mandamus is inappropriate in this case because it may not be granted to compel the performance of a discretionary act. Although it is well settled that Mandamus is improper in those instances where the exercise of judgment or discretion is allowed, the Petitioner states that the Board lacked the very discretion it claims to have possessed when the December, 1991, Resolution was approved. (See Matter of County of Fulton v. State of New York, 76 N.Y.2d 675, 563 N.Y.S.2d 33, 564 N.E.2d 643). Therefore, since Petitioner raises a violation of statute, rather than the performance of a discretionary act, it is unquestionable that this Court possesses the requisite authority to rule upon the substantive question presented.

At this juncture, it must be underscored that the issue to be decided by this Court is solely one of law. Hence, it is...