After years of discussion, the Court of Appeals on June 12 decided New York’s public school students cannot seek redress under the New York Human Rights Law (HRL) for school-based discrimination and harassment (NYLJ, June 13). The four-vote majority interpreted § 296(4) of the Executive Law—after reviewing the convoluted layering and sequencing of provisions in the General Construction Law, Human Rights Law, tax and education laws—to mean that a public school district is not an “education corporation or association” prohibited from discriminating against or permitting harassment of students. The three-vote dissent read the intersecting provisions differently, and concluded, “It is antithetical to the purpose of the [HRL] to exempt public schools from its mandate…. The clear and expressed intent of the [HRL] is to protect ‘every individual’ in the State from the evils of discrimination.”

The decisions in paired race-harassment cases mean that the New York State Division of Human Rights lacks jurisdiction to investigate complaints by students claiming to have been discriminated against or harassed in public schools. See In re North Syracuse Central School District v. New York State Division of Human Rights, Case No. 109 (N.Y. June 12, 2012), and In re Ithaca City School District v. N.Y. State Division of Human Rights, Case No. 110 (N.Y. June 12, 2012). The rulings also preclude suit in court under the HRL. Consequently, of more than 3 million schoolchildren in the state, only about 2 percent (those in private, nonsectarian schools) can seek redress under the HRL for school-based discrimination or harassment. This result, coupled with awareness of the severe and sometimes tragic consequences of harassment, discrimination, bullying and violence in schools, should power legislative repair of the HRL to protect New York’s public school students.

Far more specific and inclusive than federal antidiscrimination statutes, §296(4) bars discrimination by schools and expressly prohibits them from permitting harassment of any student based on “race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status[.]” Through the Division, the HRL provides students with a uniquely affordable and accessible forum. These protections help realize the HRL’s express purpose of ensuring equal opportunity in education and “ fulfill[ing] . . . the provisions of the constitution of this state concerning civil rights.”

Lambda Legal submitted amicus briefs in these and other cases urging courts to interpret the HRL to govern public schools. The compelling concern that students learn in a safe and nondiscriminatory environment drew more than a dozen organizations to join our briefs, ranging from Advocates for Children of New York and Disability Advocates, to the Empire State Pride Agenda, the Gay, Lesbian & Straight Education Network, and the NAACP Legal Defense and Education Fund.

No one should underestimate the significance of excluding public school students from the HRL. Because the HRL protects only those students who attend schools that are both private and nonsectarian (fewer than 68,000 in 2010-11), its remedies are now available to a tiny fraction of New York’s school-age population.

Students still have some legal protections against discrimination and harassment. Federal courts have long recognized that schools can be liable for violating public school students’ constitutional right to equal protection (see, e.g., Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996)) and under Titles VI and IX for deliberate indifference to harassment of students based on characteristics such as race and sex (which includes sex-stereotyping that encompasses transgender students and gay and lesbian students discriminated against based on gender nonconformity). See, e.g., Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135 (N.D.N.Y. 2011).

But where the HRL’s protection against discrimination based on sexual orientation is express, no federal schools law specifies sexual orientation. (The proposed federal Student Nondiscrimination Act has gained some traction but has not passed.) Absent specific language, LGBT students must wage legal battles for coverage through interpretations of protections against sex discrimination, and nonspecific laws give less direction to schools .

On the state level, New York’s Dignity for All Students Act (DASA), taking effect on July 1, 2012, requires schools to address bullying, and expressly addresses harassment based on a broad range of specified traits. But courts have not yet addressed enforcement, and it does not expressly provide access to the Division.

The benefits of the HRL’s administrative enforcement brings sharp focus to the impact of excluding public school students. The Court of Appeals has explained that a proceeding before the Division is “designed to be affordable; it allows a complainant to avoid filing fees and other expenses related to commencement of a civil action and facilitates prosecution of the claim without hiring an attorney.” Freudenthal v. County of Nassau, 99 N.Y.2d 285, 291 (2003). The Freudenthal court noted user-friendliness was especially important to a student having a first encounter with a discrimination case. For instance, the Division’s website invites aggrieved parties to file at regional offices or download a document for mailing. The Division notifies respondents; copies relevant agencies; directs investigation and (if probable cause is determined) assigns a Division attorney or agent to present the supporting case.

The court now observes that students may complain to the state commissioner of education. But the commissioner’s processes provide far less assistance. Petitioners must draft their own petitions and arrange to have them served. The sample on the commissioner’s website provides no guidance on framing a discrimination complaint. Bottom line: such a proceeding is likely beyond the reach of a student without an attorney.

Legislation pending in this state now takes on more urgency: A.08094, passed by the General Assembly and pending in the Senate as S.5823, would amend the HRL to bring public school students under its protection.

There is common ground in society’s appreciation of the need for basic, safe learning environments for our youth. Establishing public schools’ accountability through the Human Rights Law should be a clear, compelling and uncontroversial priority.

Tom Ude is a senior attorney and Hayley Gorenberg is deputy legal director for Lambda Legal.