New York Institute of Technology v. State Division of Human Rights

• Decision Date: 08 July 1976
• Citation: 386 N.Y.S.2d 685,40 N.Y.2d 316,353 N.E.2d 598
• Parties: , 353 N.E.2d 598, 35 Fair Empl.Prac.Cas. (BNA) 1123, 13 Empl. Prac. Dec. P 11,343 NEW YORK INSTITUTE OF TECHNOLOGY, Appellant, v. STATE DIVISION OF HUMAN RIGHTS et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 685

386 N.Y.S.2d 685

40 N.Y.2d 316, 353 N.E.2d 598,

35 Fair Empl.Prac.Cas. (BNA) 1123,

13 Empl. Prac. Dec. P 11,343

NEW YORK INSTITUTE OF TECHNOLOGY, Appellant, v. STATE DIVISION OF HUMAN RIGHTS et al., Respondents.

Court of Appeals of New York.

July 8, 1976.

Edward F. Callan and Joseph F. Porrino, New York City, for appellant.

Sara Toll East and Beverly Gross, New York City, for State Division of Human Rights, respondent.

Norman E. Henkin, New York City, for Laura Canuto, respondent.

JASEN, Judge.

The issue before us is whether the State Commissioner of Human Rights, having found that an educational institution denied a professor tenure on the basis of a discriminatory classification, may order the institution to grant the offended employee tenure. We conclude that, while the commissioner may have this power in the abstract, its employment must be carefully restricted to only the most extraordinary of situations.

Dr. Laura Canuto was hired in 1969 by the New York Institute of Technology, a private educational college, to serve as an assistant professor of physics. At the time, the physics department of the Institute's Manhattan campus, where Dr. Canuto was assigned, consisted of seven faculty members, including one other female professor. In 1971, Dr. Canuto was promoted to the position of associate professor and the following year was first considered for tenure. Pursuant to the provisions of a collective bargaining agreement with its faculty, the Institute grants tenure only after the applicant has been approved by a series of faculty committees, whose recommendations are reviewed by the president of the Institute. The president submits his own recommendation along with the recommendation of the faculty to the board of trustees which has the sole power to grant or deny tenure. The tenure provisions also stipulate that a faculty member who has taught at a college level for a total of seven years, including three years at the Institute, must be granted tenure or terminated. Dr. Canuto's application for tenure in the 1972--1973 academic year was approved by three faculty committees, but was disapproved by the final faculty level review committee, the college-wide committee. The next year she was approved by two committees, with the third committee changing its position and recommending denial of tenure. Dr. Canuto took an internal appeal of the latter determination, which was denied on the ground that 'the Physics department has been shrinking and no place was available for Dr. Canuto'. Since Dr. Canuto had taught at the college level for seven years and at the Institute for three without receiving tenure, she was given a terminal contract to teach for one final year.

Dr. Canuto filed a complaint with the State Division of Human Rights alleging that the Institute and certain members of its administration had discriminated against her by denying her tenure because she was a woman. After a hearing, the Commissioner of Human Rights found that, although the individual administrators had not committed any unlawful discriminatory acts, the Institute itself had 'committed an unlawful discriminatory practice in denying Complainant, because of her sex, an opportunity to qualify for tenure.' The commissioner directed that the Institute 'restore the Complainant to the position of Associate Professor in the Math-Physics Department With tenure' (emphasis added) and ordered that the Institute pay to Dr. Canuto a sum of money 'as back pay' representing the amount of money she would have earned had she been retained on the faculty after the expiration of her terminal contract. The State Human Rights Appeal Board unanimously affirmed the order.

The Institute initiated a review proceeding in the Appellate Division, First Department. (Executive Law, § 298.) The division cross-petitioned for enforcement of its order. In its petition for review, the Institute alleged that the finding of discrimination was not supported by substantial evidence and that the administrative agency had erred in finding that Dr. Canuto had been discriminated against. Although the petition for review did not contest the breadth of the commissioner's order and though no complaint had been made at either the commissioner or the Appeal Board level, in its brief to the Appellate Division the Institute argued that the commissioner's order that tenure be granted Dr. Canuto was overly broad. Both the Division of Human Rights and Dr. Canuto filed briefs contending that the commissioner's order was, in all respects, valid and lawful. The Appellate Division confirmed the determination of the Appeal Board, stating, in a Per Curiam opinion, that there was a factual basis for the finding of sex discrimination and that the remedy selected by the division was reasonably related to the discriminatory practice found to exist and to the legislative policy behind the statute. (48 A.D.2d 132, 134, 368 N.Y.S.2d 207, 209.)

On this appeal the Institute no longer questions the sufficiency of the evidence supporting the division's finding of discrimination. The Institute's arguments are addressed solely to that portion of the commissioner's order that directs the granting of tenure to Dr. Canuto. At the threshold, we must consider the contention of Dr. Canuto that the issue of the breadth of the commissioner's order has not been adequately preserved for our review. The record before us bears no indication that any objection to the tenure order was made before the commissioner or the Appeal Board. As previously noted, the point was not raised in the petition for review, although it was briefed to the Appellate Division. The Human Rights Law provides for initial judicial review of Appeal Board orders by the Appellate Division. 'No objection that has not been urged in prior proceedings shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.' (Executive Law, § 298.) The Appellate Division treated the issue on its merits and, thereby, exercised the discretionary power conferred by statute to overlook a failure to object where the situation warrants. Where the Appellate Division has implicitly exercised its statutory authority to review a question of law, regardless of the absence of a timely objection, particularly where that court also had before it a cross petition for enforcement, we may not later declare that the issue has not been preserved. (Cf. Matter of Holland v. Edwards, 307 N.Y. 38, 47, 119 N.E.2d 581, 585.) Although not determinative, we note that the State Division of Human Rights, in its brief, does not raise the technical issue, suggesting that the division would prefer to have us issue an adjudication of its authority so that its future course might be clear. It has been the consistent policy of this court, although in a different context, to rule on matters of great public significance, particularly where the case entails construction of broad statutory language, despite technical flaws in the record reaching this court. (See, e.g., Matter of National Organization for Women v. State Div. of Human Rights, 34 N.Y.2d 416, 419, 358 N.Y.S.2d 124, 126, 314 N.E.2d 867, 869.) In light of the Appellate Division's resolution on the merits and since this case involves a question of far-reaching public importance concerning an issue of statutory interpretation of which the administering agency seeks final judicial resolution, we believe it proper to consider the merits of this appeal.

The university occupies a unique and vital role in modern American society. To the universities, public as well as private, is assigned the task, arduous as it might be, of educating the young with the skills or concepts conducive to fulfillment in our increasingly complex society. Not only is the university entrusted with the responsibility for providing rote knowledge and technical expertise, it is also relied upon to assist students in developing the capacity for independent, critical thought and examination, a capacity that will serve not only in future commercial endeavors, but will enable students to take an active part in shaping the future development of our democratic society. Vital as this task might be, the university has other significant functions. The university serves as a cultural treasure house where the knowledge of the past can be studied, the beauties of art and literature appreciated, and research conducted to increase mankind's store of knowledge and help to construct a better world and uplift the human spirit. The university is a place where questions should be freely asked and where answers, perhaps, can be found.

The management of the university is primarily the responsibility of those equipped with the special skills and sensitivities necessary for so delicate a task. One of the most sensitive functions of the university administration is the appointment, promotion and retention of the faculty. It is for this reason that the courts, and administrative agencies as well, should ...