COURT OF APPEALS

To be argued by: Raymond M. Schlather, Esq. Time requested: 15 minutes

STATE OF NEW YORK

ITHACA CITY SCHOOL DISTRICT,

Petitioner-Appellant,

-against-

NEW YORK STATE DIVISION OF HUMAN RIGHTS, on the complaint of AMELIA KEARNEY on behalf of her minor child EPIPHANY KEARNEY,

Respondents-Respondents.

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BRIEF OF RESPONDENT AMELIA KEARNEY

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Date Completed: February 28, 2012

RAYMOND M. SCHLATHER , ESQ. DIANE V. BRUNS, ESQ. Schlather, Stumbar, Parks & Salk, LLP Attorneys for Respondent Kearney 200 East Buffalo Street P.O. Box 353 Ithaca, New York 14850 Tel: (607) 273-2202 Facsimile: (607) 273-4436

TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT 1

QUESTIONS PRESENTED 4

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND 5

ARGUMENT 9

POINT I: THE NEW YORK STATE HUMAN RIGHTS LAW APPLIES TO A PUBLIC SCHOOL DISTRICT. 9

POINT II: THE APPELLATE DIVISION'S CONCLUSION THAT THE SCHOOL DISTRICT HAD VIOLATED THE HUMAN RIGHTS LAW APPLIES THE APPROPRIATE STANDARD OF REVIEW AND IS SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD. 19

POINT III: THE AWARD OF DAMAGES TO AMELIA KEARNEY IS BOTH AUTHORIZED UNDER THE HUMAN RIGHTS LAW AND SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD. 23

POINT IV: PURSUANT TO THE STATE ADMINISTRATIVE PROCEDURE ACT, THE SCHOOL DISTRICT HAS WAIVED ANY OBJECTION TO THE DIVISION'S JURISDICTION. 27

CONCLUSION 30

TABLE OF AUTHORITIES

CASES

Barmore v. Aidala, 2006 US Dist LEXIS 46490, 206 WL 1978449 (NDNY 2006)

Belanoffv. Grayson, 98 AD2d 353 (1st Dept 1984)

Bovich v. East Meadow Public Library, 16 AD3d 11 (2nd Dept 2005)

Bovsun v. Sanperi, 61 NY2d 219 (1984)

Cavello v. Sherburne-Earlville Central School District, 110 AD2d 253 (3rd Dept 1985), appeal dismissed 67 NY2d 601 (1985), appeal and Iv dismissed 67 NY2d 647 (1985)

Crispim v. Athanson (275 F Supp 2d 240 (D Conn 2003)

CUNY-Hostos v. State Human Rights Appeal Board, 59 NY2d 69 (1983)

Devito v. Opatich, 215 AD2d 714 (2nd Dept 1995)

Gant v. Wallingford Board of Education, 195 F3d 134 (2nd Cir 1999)

Gilbert v. Stanton Brewery, Inc., 295 NY 270 (1946)

Hart v. Sullivan, 84 AD2d 865(3rd Dept 1981), I 55 NY2d 1011 (1981)

Koerner v. State of New York, 62NY2d 442 (1984)

Martin v. Curran, 303 NY 276 (1951)

Matter of Cahill v. Rosa, 89 NY2d 14 (1996)

i

PAGE

22,23

24

12

25

24

22, 23

21

24

22, 23

24

24

10

14

10

Matter of East Meadow Union Free School District v. New York State Division of Human Rights, 65 AD3d 1342 (2nd Dept 2009), Iv denied 14 NY3d 710 (2010)

Matter of Farina v. State Liquor Authority, 20 NY2d 484 (1968)

Matter of Graves, 171 NY 40 (1902)

Matter of Imperial Diner v. State Human Rights Appeal Board, 52 NY2d 72 (1980)

Matter of New York City Transit Authority v. State Division of Human Rights, 78 NY2d 207 (1991)

Matter of Mateo v. New York State Division of Human Rights, 306 AD2d 44 (3rd Dept 2002)

Matter of New York State Energy Research and Development Authority v. New York State Division of Human Rights, 50 AD3d 1361 (3rd Dept 2008)

Matter of Newfield Central School District v. New York State Division of Human Rights, 66 AD3d 1314 (3rd Dept 2009)

Matter of North Syracuse Central School District v. New York State Division of Human Rights, 83 AD3d 1472 (4th Dept 2011), Iv granted 17 AD3d 706 (2011)

Matter of Sherwood Terrace Apartments v. New York State Division of Human Rights, 61 AD3d 1333 (4th Dept 2009)

Matter of Student Press, Inc. v. New York State Human Rights Appeal Board, 44 AD2d 1974 (2nd Dept 1974)

Matter of State Division of Human Rights [Granel/e] v. City of New York, 70 NY2d 100 (1987)

ii

1, 11, 12

28

14

26, 27

26

20

26

11

11

25

11

20

Matter of Swamp Club Annex v. White, 167 AD2d 400 (2nd Dept 1990), Iv denied 77 NY2d 809 (1991)

Mohonk Trust v. Board of Assessors of Town of Gardiner, 42 NY2d 476 (1979)

Nostima Foods v. State Liquor Authority, 71 NY2d 648 (1988)

Pratt v. Indian River Central School District, 803 F Supp 2d 135 (NDNY 2011)

Price v. Southwest Airlines, 66 AD3d 1267 (3rd Dept 2009), Iv dismissed 14 NY3d 858 (2010), rearg denied 15 NY3d 800 (2010)

Rich v. Cooper Vision, Inc., 198 AD2d 860 (4th Dept 1993)

Saggio v. Sprady, 475 F Supp 2d 203 (EDNY 2007)

Schreiber v. St. John's University, 84 NY2d 120 (1994)

Spoon v. American Agriculturist, 120 AD2d 857 (3rd Dept 1986)

State Division of Human Rights v. Board of Cooperative Educational Services, 98 AD2d 958 (4th Dept 1983), appeal dismissed 62 NY2d 645 (1984)

Stefanis v. New York State Division of Human Rights, 244 AD2d 342 (2nd Dept 1997)

300 Gramatan Avenue Associates v. State Division of Human Rights, 45 NY2d 176 (1978)

Yap v. Oceanside Union Free School District, 303 F Supp 284 (EDNY 2004)

iii

20

14

28

12

26

24

22, 24

3, 17

24

13,16 19

27

20, 27

22, 23

STATUTES

Civil Rights Acts of 1964, Title VI

CPLR 7804(g)

Education Amendments, Title IX

Education Law § 216-a

Education Law § 310

Education Law § 313

Education Law § 1501

Education Law § 1504

Education Law § 1522

Education Law § 3201

Executive Law § 290

Executive Law § 291

Executive Law § 296(4)

Executive Law § 297

Executive Law § 300

General Construction Law § 65

General Construction Law § 66

General Construction Law § 110

NY Constitution article 1, § 11

Real Property Tax Law § 408

Real Property Tax Law former § 420

iv

19, 21

7

21

13

18, 19

17

13

13

13

18

2, 8, 9, 10

9

passim

24, 25

2, 8, 10

2, 7

2, 7, 12, 13

2, 7, 15

9

17

17

Real Property Tax Law § 420-a

State Administrative Procedure Act § 101

State Administrative Procedure Act § 102

State Administrative Procedure Act § 301(5)

Title 42 United States Code § 1981

Title 42 United States Code § 1983

LEGISLATIVE MATERIALS

1973 N.Y. Laws, ch. 451, Bill Jacket, Explanatory Memorandum of Joint Legislative Committee to Study Revision of Corp. Laws (April 25, 1973)

v

17

27

27

27

22

22

15

PRELIMINARY STATEMENT

This brief is submitted on behalf of respondent Amelia Kearney, complainant in

the underlying Human Rights proceeding. In 2006 Ms. Kearney filed a complaint

with the State Division of Human Rights, alleging that (1) her daughter Epiphany,

then a twelve-year old African-American student at DeWitt Middle School in Ithaca,

New York, was subjected repeatedly to racial insults, racially-based threats, and

physical harm by other students at the school, and (2) despite Ms. Kearney's

repeated complaints and requests for help, school officials did not respond in any

meaningful way or take effective steps to stop the racial harassment and

mistreatment of Epiphany. Ultimately, the Commissioner of the State Division of

Human Rights issued a Final Order confirming the finding of the Administrative Law

Judge, after a hearing, that Epiphany had been the target of "numerous episodes of

racial taunting and physical violence," and that the School District had permitted this

continuing racial harassment. Supreme Court, on a petition for judicial review of that

Final Order, issued a Decision and Order that sua sponte dismissed both the Petition

and the Cross Petition on the basis that, pursuant to the determination of the Second

Department in East Meadow Union Free Sch. Dist. v State Div. of Human Rights (65

AD3d 1342 [2nd Dept 2009], Iv denied 14 NY3d 710 [2010]), the Division had no

authority to hear and determine complaints against the School District, as it was not

an "education corporation" as provided in section 296(4) of the Executive Law.

The Appellate Division, with one justice dissenting, issued an Opinion and

Order holding that the protections of the Human Rights Law extended to students in

the public schools of this state. 1 That court concluded that the Division has a broad

1 The Appellate Division's Order further held that the Commissioner's finding that the School District had engaged in racially discriminatory conduct was supported by substantial evidence in the record, as were the awards of compensatory damages to both Epiphany and Amelia Kearney, although it reduced the amount of damages awarded to Amelia Kearney.

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and general jurisdiction to "eliminate and prevent discrimination" in the state's

"educational institutions," and that nothing in either "the statutory language of the

Human Rights Law, or its legislative history, dictates the exclusion of public schools

from that broad mandate." A7. With respect to the School District's contention that

a public school is not an "education corporation or association" for purposes of the

Human Rights Law, the court noted that the Human Rights Law itself contains no

definition of that term and, as a remedial statute, the Human Rights Law "must be

liberally construed to accomplish its beneficial purposes -one of which is to eliminate

discrimination in 'educational institutions' (Executive Law §§ 290, 300) - 'and to

spread its beneficial results as widely as possible' (citations omitted)." A9.

That court rejected the argument of the School District that because, under a

strict reading of General Construction Law §§ 65 and 66, and other, essentially

irrelevant, statutes, a public school district would not be considered an "education

corporation," the Human Rights Law must be similarly constrained. As the Appellate

Division noted, the General Construction Law provides in section 110 that the GCL is

not intended to itself provide a missing definition in any particular statute where the

"general object, or the context of the language construed, or other provision of law

indicate that a different meaning or application was intended from that required to be

given by [the General Construction Law]." A9. The court particularly noted that to

adopt the School District's argument would be to accept that in enacting the Human

Rights Law, "the Legislature intended to provide its protection only to the relatively

minuscule percentage of students" who attended private, non-religious schools - a

That court also sustained the Commissioner's order of injunctive relief, as falling within the Division's broad authority to fashion a remedy for discrimination under the Executive Law. A1D-A13, The School District appears to have abandoned on this appeal its challenge to the appropriateness of the Commissioner's award of equitable relief. .

2

result that the Appellate Division pithily described as "clearly contrary to the express

purpose of the Human Rights Law." A9.

This Court has repeatedly recognized that the Human Rights Law must be

liberally construed and must be read "in a manner that will accomplish its strong

antidiscriminatory purpose." Schreiber v st. John's Univ. (84 NY2d 120, 125-126

[1994]). The decision of the Appellate Division is firmly grounded both in the

language of the statute and the applicable principles of statutory construction, and in

the public policy and legislative intent underlying the Human Rights Law.

3

QUESTIONS PRESENTED

I. DOES THE NEW YORK STATE HUMAN RIGHTS LAW APPLY TO A PUBLIC SCHOOL DISTRICT?

The Appellate Division correctly concluded that the New York State Division of Human Rights' jurisdiction over "educational institutions" includes jurisdiction over the public school districts of this State, and the term "educational corporation" as used in Executive Law § 296(4) must be interpreted so as to effect the broad beneficial purposes of the Human Rights Law.

II. WAS THE APPELLATE DIVISION CORRECT IN UPHOLDING THE DETERMINATION OF THE COMMISSIONER THAT THE ITHACA CITY SCHOOL DISTRICT WAS LIABLE UNDER THE HUMAN RIGHTS LAW FOR FAILING TO TAKE ADEQUATE ACTION TO PREVENT THE RACIALLY DISCRIMINATORY VERBAL AND PHYSICAL ABUSE OF EPIPHANY KEARNEY?

The Appellate Division correctly concluded that the Commissioner's determination was supported by substantial evidence in the record.

III. SHOULD THE COMMISSIONER'S FINAL ORDER AWARDING DAMAGES TO AMELIA KEARNEY, AS MODIFIED BY THE APPELLATE DIVISION, BE SUSTAINED?

The Appellate Division correctly concluded that because Executive Law § 297(9) provides that "any person claiming to be aggrieved by an unlawful discriminatory practice" has a cognizable claim for damages under the Human Rights Law, the Commissioner's award of damages, although reduced in amount by the appellate court, was both within the scope of the Commissioner's authority and supported by substantial evidence in the record.

IV. DID THE ITHACA CITY SCHOOL DISTRICT WAIVE ITS RIGHT TO ASSERT ANY OBJECTION TO THE DIVISION'S JURISDICTION, PURSUANT TO THE STATE ADMINISTRATIVE PROCEDURE ACT?

Although this question was raised at the Appellate Division, that court did not address it.

4

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

The facts concerning the incidents of racial harassment underlying this appeal

are set forth in the Recommended Findings of Fact, Opinion and Decision, and Order

of Administrative Law Judge Christine Marbach Kellett (A19 to A25), as adopted by

the Commissioner of Human Rights (A32 to A33), and in the Statement of Facts

found in the brief submitted on this appeal by the State Division of Human Rights.

Those facts will not be repeated here.

Procedurally, in 2006 Appellant Amelia Kearney filed a complaint with the State

Division of Human Rights, alleging that (1) her daughter Epiphany, a twelve-year old

African-American student at DeWitt Middle School in Ithaca, New York, was subjected

repeatedly racial insults, racially-based threats, and physical harm by other students

at the school, and (2) despite her repeated complaints and requests for help, school

officials did not respond in any meaningful way or take effective steps to stop the

racial harassment and mistreatment of Epiphany, Following an investigation, the

Division concluded that probable cause existed to believe that the Ithaca City School

District had engaged in an unlawful discriminatory act in permitting the continuing

racially-based harassment. The case was then set down for a public hearing.

Prior to the hearing, the School District moved pursuant to Article 78 of the CPLR

for an order prohibiting the Division from conducting the scheduled hearing, on the

basis that section 296(4) of the Executive Law, which prohibits discrimination by an

"education corporation or association," does not extend to the public schools and,

accordingly, the Division had no jurisdiction over Ms. Kearney's complaint. By

Decision and Order dated September 11, 2007, Supreme Court denied the petition.

The School District then took an appeal from that determination to the Appellate

5

Division but discontinued and withdrew its appeal. The public hearing went forward on

December 19 and 20, 2007. At the commencement of that hearing, the

Administrative Law Judge expressly stated that the School District was submitting to

the jurisdiction of the Division and proceeding with the hearing; counsel for the

School District made no objection to this statement, and the hearing went forward.

At its conclusion, both parties submitted their respective proposed Findings of Fact

and Conclusions of Law; no proposed factual finding or conclusion of law related to

the issue of jurisdiction was included in the School District's submission. AS7 to AS8.

On April 18, 2008, the Administrative Law Judge issued her Recommended

Findings of Fact, Decision, Opinion and Order, in which she concluded that the School

District had engaged in unlawful discriminatory acts, awarded damages in the amount

of $500,000 each to Amelia and Epiphany Kearney, and ordered additional injunctive

and equitable relief. A26 to A31. On May 1, 2008, the School District submitted its

written objections to the findings and order of the AU, contending that many of the

factual findings were not supported by the evidence, that the award of damages to

Amelia Kearney was without baSiS, that the compensatory damages to Epiphany were

excessive and not supported by the record, and that the injunctive remedies were

"vague and unduly burdensome." As noted above, the School District raised no

objection to the Division's jurisdiction over Ms. Kearney's complaint. A91 to A96.

On May 8, 2009, the Commissioner of the State Division of Human Rights

issued the Notice and Final Order in this matter; although the Final Order reduced

both damage awards to $200,000 each, it otherwise sustained the AU's

determination in all respects. A32 to A33.

On July 6, 2009, the School District filed a Petition pursuant to Executive Law

§ 298 in Supreme Court, Tompkins County, for an Order of that court transferring the

6

matter to the Appellate Division. The Petition sought no other relief. A42 to AS1.

The Division filed a Cross Petition dated August 14, 2009 which also sought transfer

of the matter for review; in addition, the Division's Cross Petition sought a judgment

directing the enforcement in full of the Commissioner's Final Order. A72 to A8S.

However, on October 8, 2009, Supreme Court issued a Decision and Order that sua

sponte dismissed both the Petition and the Cross Petition on the basis that, pursuant

to the determination of the Second Department in East Meadow Union Free Sch. Dist.

v State Div. of Human Rights (65 AD3d 1342 [2nd Dept 2009], Iv denied 14 NY3d 710

[2010]), the Division had no authority to hear and determine complaints against the

School District, as it was not an "education corporation" as provided in section 296(4)

of the Executive Law. In its Decision and Order, Supreme Court, while

acknowledging that the matter was properly subject to transfer to the Appellate

Division, stated that it nevertheless had jurisdiction pursuant to CPLR 7804(9) to

dispose of any objection that could terminate the proceeding before it. A16 to A18.

On June 30, 2011, the Appellate Division issued an Opinion and Order

upholding the determination of the Commissioner. AS to A1S. Initially, that court

noted that Supreme Court had erred in failing simply to transfer the matter;

accordingly, it vacated the Order of Supreme Court and considered the matter de

novo. The Appellate Division rejected the holding of East Meadow that a strict

reading of General Construction Law §§ 65 and 66 compels the conclusion that a

public school district is not an "education corporation or association" for purposes of

the Human Rights Law. Instead, that court looked to the broader and more

comprehensive provision of General Construction Law § 110 which states that the

General Construction Law is not intended to furnish a missing definition of a term in a

particular statute when the "general object" or context of the statute "indicate that a

7

different meaning or application was intended from that required to be given by [the

General Construction Law." The court then looked to the purposes of the Human

Rights Law and to the well-established legal principle that the Human Rights Law is a

remedial statute which "must be liberally construed to accomplish its beneficial

purposes - one of which is to eliminate discrimination in 'educational institutions'

(Executive Law §§ 290, 300) -'and to spread its beneficial results as widely as possible'

(citations omitted)." A9.

The Appellate Division also concluded that substantial evidence appearing in

the record supporting the findings and conclusions of the Division, noting the

existence of "ample testimony and other evidence" that Epiphany Kearney was

subject to verbal and physical abuse on the school bus, that this was known to the

school's administrators - one of whom described the bus as a "hell hole" - and that

the administrators did not take adequate measures available to them to stop the

abuse. Although it reduced the amount of monetary damages awarded to Amelia

Kearney, it sustained in all other respects the determination of the Commissioner.

A10 to All.

One justice dissented, choOSing instead to adopt the conclusion of East

Meadow that Executive Law § 296(4) does not apply to the public schools. A13 to

A14.

The School District moved for leave to appeal from the Decision and Order of

the Appellate Division, and on November 17, 2011, this Court granted the motion.

8

ARGUMENT

POINT I

THE NEW YORK STATE HUMAN RIGHTS LAW APPLIES TO A PUBLIC SCHOOL DISTRICT.

In enacting the Human Rights Law (Article 15 of the Executive Law), the

Legislature expressly declared that statute "an exercise of the police power of the

state * * * in fulfillment of the provisions of the constitution of this state concerning

civil rights." Executive Law § 290 (2). It is clear that the Legislature sought through

the Human Rights Law to implement the directive of the state's constitution that no

person because of "race, color, creed or religion" should be subject to any

discrimination by any private person, the state itself, or any subdivision of the state.

See NY Constitution article 1, § 11. That this intent extends to the public schools is

emphasized by Executive Law § 291(2), which declares that the opportunity to obtain

an education free from discrimination is a "civil right."

Executive Law § 290(3) sets out in more detail the fundamental purposes of

the Human Rights Law, explicitly stating that one of these purposes is

to eliminate and prevent discrimination in employment, in places of public accommodation, resort or amusement, in educational institutions, in public services, in housing accommodations, in commercial space and in credit transactions and to take other actions against discrimination as herein provided; and the division established hereunder is hereby given general jurisdiction and power for such purposes (emphasis added).

9

The School District's contention on this appeal that section 290(3) "does not confer

any jurisdiction to adjudicate claims" is clearly contradictory to this statutory

language.

Section 296(4) of the statute specifically provides that it is an unlawful

discriminatory practice for an educational corporation or association "to permit the

harassment of any student or applicant, by reason of his race, color, religion,

disability, national origin, sexual orientation, military status, sex, age or marital status

* * *." As this Court stated in Koerner v State of New York (62 NY2d 442, 448-449

[1984]), "the elimination of discrimination in the provision of basic opportunities is the

predominant purpose of [the Human Rights Law]."

The Human Rights Law contains in section 300 ("Construction") the explicit

legislative directive that "[t]he provisions of this article shall be construed liberally for

the accomplishment of the purposes thereof." This Court has made it clear that the

liberal construction of the Human Rights Law applies not only to a determination of

what conduct is prohibited by the statute, but to a determination of the persons and

institutions to which the statute applies. See Matter of Cahill v Rosa (89 NY2d 14, 20

[1996]).

Section 290(3) of the Human Rights Law explicitly states that the Division has

"general jurisdiction and power" to effect the purposes of the statute. Section 290(3)

specifically charges the Division with the task of eliminating discrimination "in

educational institutions." To conclude, as urged by the School District, that the

Division has no jurisdiction over unlawful discriminatory actions by a public school

district is in direct contravention to what has up until now been the state's strong and

long-standing public policy of preventing discrimination in the state's institutions and

10

subdivisions, and the express policy of its courts that the Human Rights Law must be

interpreted liberally in order to effect the broad remedial purposes of the statute.

In reaching the conclusion that the Division of Human Rights has no

jurisdiction to hear or determine a complaint under the Human Rights Law against a

public school district, Supreme Court felt constrained to rely not on this body of

precedent but instead on the decision of the Second Department in East Meadow

Union Free Sch. Dist. v State Div. of Human Rights (65 AD3d 1342 [2nd Dept 2009],

Iv denied 14 NY3d 710 [2010]), which at that time was the sole appellate level

decision to consider the jurisdictional question on the merits2• As the decision in East

Meadow is cursory, poorly reasoned and fundamentally misconstrues or ignores the

2 Thirty-five years previously, in Matter of Student Press, Inc. v NYS Human Rights Appeal Bd. (44 AD2d 1974 [2nd Dept 1974]), the Second Department simply held without analysis that under Executive Law § 296(4), the Division of Human Rights did not have jurisdiction to entertain a complaint against Queens College of the City University of New York. That decision went virtually ignored until resurrected by the court in East Meadow.

Recently, the Third Department declined to entertain an appeal from a decision of Supreme Court, Tompkins County, which granted the application of the Newfield Central School District pursuant to Article 78 for an order prohibiting the New York State Division of Human Rights from investigating discrimination complaints against the school district; the appellate court dismissed the petition on the basis that the school district had not yet exhausted its administrative remedies. See Matter of Newfield Central School District v New York State Div. of Human Rights (66 AD3d 1314 [3rd Dept 2009]). In addition, the Fourth Department recently reversed a judgment in an article 78 proceeding prohibiting the Division of Human Rights from taking action on a complaint of racial and disability discrimination filed by the mother of a student in the North Syracuse Central School District, on the basis that the School District had failed to establish the futility of administrative review prior to bringing its petition for a writ of prohibition. See Matter of North Syracuse Central School District v New York State Div. of Human Rights (83 AD 3d 1472 [4th Dept 2011], Iv granted 17 AD 3d 706 [2011]).

11

plain wording of the relevant statutes, as well as case-law precedent, its holding and

analysis were correctly rejected by the Third Department here. 3

The primary holding of East Meadow is that any determination that a public

school district is an "education corporation or association" for purposes of Executive

law § 296(4) is precluded by application of the definitions of "public corporation,"

"education corporation," and "municipal corporation" set out in the General

Construction law. General Construction law §§ 66(1) and (2) define a school district

as a "municipal corporation" and a municipal corporation in turn as a "public

corporation." Without citing to any authority or principal of statutory construction,

the court in East Meadow simply concluded because a school district is thus impliedly

not included within the definition of an "education corporation" set out in GCl

§ 66(6), it cannot be considered an "education corporation or association" within the

meaning of the Human Rights law. The court offered no authority or analysis leading

to its conclusion that a public school district cannot constitute both a "public

corporation" for purposes of the General Construction law and an "education

corporation or association" for purposes of the Human Rights law. To the contrary,

the Second Department had itself recognized in its prior decisions that an institution

can be subject to overlapping definitions of its corporate status: in Bovich v East

Meadow Public Library (16 AD3d 11, 17 [2nd Dept 2005]), for example, that court

recognized that, "[w]hile there is authority for the proposition that a public library is

3 Only three months prior to the Appellate Division's holding here, a federal court applying New York law felt constrained to dismiss the plaintiffs' claims under the Human Rights Law because of the holding in East Meadow, although it had "serious reservations" concerning East Meadow's conclusion that Human Rights Law § 296(4) does not apply to public school districts. Pratt v Indian River Cent. Sch. Dist. (803 F Supp 2d 135, 148 [NDNY 2011])

12

an 'education corporation,' this does not mean that it cannot also be a municipal

corporation (citations omitted)."

In fact, even the General Construction Law recognizes that a public school may

be considered an education corporation under the definition there provided. GCL

§ 66(6), incorporating by reference the definition set out in section 216-a(1) of the

Education Law, includes within the term "education corporation" any corporation

"formed under" the Education Law. Public school districts are "formed under"

sections 1501, 1504, and 1522 of the Education Law; accordingly, they constitute

"education corporations" even under the terms of the General Construction Law. The

Fourth Department has recognized the validity of this argument in its holding in State

Div. of Human Rights v Board of Coop. Educ. Servs. (98 AD2d 958 [4th Dept 1983],

appeal dismissed 62 NY2d 645 [1984])) that the Board of Cooperative Educational

Services had been created pursuant to Education Law former § 1950 and was,

therefore, subject to Executive Law § 296(4).

Executive Law § 296(4) applies by its terms not only to an "education

corporation" but to an "education association." As even the East Meadow court

conceded, the General Construction Law provides no definition of "education

association" and, even assuming arguendo that the GCL can be read in such a way

that it excludes an "education corporation" from the reach of Executive Law § 296(4),

that statute cannot be read similarly to exclude an "education association" from the

reach of the Human Rights Law. The court concluded that since a corporation and an

association are "different things," because a public school district is a "corporation"

under the General Construction Law, it cannot also be an "association." Not only is

this argument circular, it is wrong. The court relied for the distinction thus drawn

13

between a corporation and an association primarily on the nearly sixty-year-old

decision of this Court in Martin v Curran (303 NY 276, 280 [1951]). However, the

distinction drawn there is between a corporation and a "voluntary, unincorporated

membership association," which is by no interpretative stretch a description of a

public school district. Similarly, the other, and even older, case on which the court

relied, Matter of Graves (171 NY 40, 47 [1902]), states only that a tax law enacted in

1900, read in connection with a tax law enacted in 1893, "may well be considered as

making a distinction between a corporation and an association organized for the

purposes of charity." These narrow determinations are insufficient to support the

East Meadow court's analysis.

This Court has specifically noted that "'association' is a broad term which may

be used to include a wide assortment of differing organizational structures * * *

depending on the context." Mohonk Trust v Board of Assessors of Town of Gardiner

(42 NY2d 476, 482-483 [1979]). Whatever the Legislature meant by the inclusion of

the phrase "education association" in Executive Law § 296(4), it must be read within

the context of the statute and arguably its use demonstrates the legislative intent

that the Human Rights Law be given a broad reach. Arguably, the Legislature used

the phrase "education corporation or education association" to give as inclusive a

definition as possible to the term "education institution" employed in section 290(3),

setting out the statutory purposes of the Human Rights Law.

Moreover, to interpret the General Construction Law as limiting the reach of

the Human Rights Law is in contradiction to the declared legislative purpose of each

of these statutes. As set out above, the legislative purpose of the Human Rights Law

is to implement the constitutional directive that no person because of "race, color,

14

creed or religion" should be subject to any discrimination by any private person, the

state itself, or any subdivision of the state. As set out by the Attorney General of the

State of New York in his brief amicus curiae submitted to the Appellate Division,

relying on the Explanatory Memorandum of the Joint Legislative Committee to Study

Revision of Corp. Laws (April 25, 1973) as reprinted in the Bill Jacket for ch.451 of the

Laws of 1973, the narrow purpose of General Construction Law §§ 65 and 66 was "to

transfer the classification of corporations and definitions from the General Corporation

Law to the General Construction Law," because the General Corporation Law was

being repealed as part of a statewide revision of corporate statutes. According to this

Memorandum, the "update and transfer" of these definitions into the General

Construction Law was not intended to affect or alter substantive provisions of other

statutes.

Finally, General Construction Law § 110 provides that the GCL is

applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.

As discussed above, the "general object" of the Human Rights Law and the "context"

of the language of Executive Law § 296(4) clearly indicate the legislative intent that a

public school district would fall within the reach of the Human Rights Law.

Accordingly, any definitions set out in the General Construction Law are not properly

interpreted as narrowing that reach or as excluding a public school district from the

wide statutory prohibition against discriminatory acts by the state or any subdivision

of the state. The narrow and exclusionary approach taken by the court in East

Meadow thus flies in the face of the precedent established by this Court in

15

consistently emphasizing that the Human Rights Law must be given a liberal

construction, and that courts are "mandated to read ·the [statute] in a manner that

will accomplish its strong antidiscriminatory purpose." Scheiber v St. John's Univ. (84

NY2d 120, 125-126 [1994]). To read the Human Rights Law in such a manner as to

deprive all public school students, a population that is particularly vulnerable to the

serious and sometimes tragic effects of bullying, of the protections of that law cannot

be countenanced.

The School District next argues that section 296(4) of the Human Rights Law

itself limits that law's applicability only to an entity "which holds itself out to the public

to . be non-sectarian and exempt from taxation pursuant to the provisions of article

four of the real property tax law" - that is, to a private school, because a public

school is constitutionally mandated to be non-sectarian and therefore has no need to

"hold itself out to the public" as such. A more correct reading of this statutory

provision is that its purpose is to bring within the scope of the Human Rights Law

those private schools that might otherwise not be subject to it, as they are not so

obviously subject to state regulation as are the public schools.

The public schools are exempted from taxation pursuant to section 408 of the

Real Property Tax Law. Because the public schools are thus "exempt from taxation

pursuant to the provisions of article four of the real property tax law," they are within

the scope of Human Rights Law § 296(4). The Fourth Department in SDHR v BOCES

(98 AD2d 958 [4th Dept 1983], appeal dismissed 62 NY2d 645 [1984]) based its

conclusion that the Board of Cooperative Educational Services (BOCES) was subject

to section 296(4) of the Human Rights Law on this basis. As BOCES was both

"nonsectarian and exempt from real property taxes under section 408 of the Real

16

Property Tax Law," the court rejected the argument that BOCES as a public

educational institution was not an education corporation or association within the

meaning of that statutory section.

Contrary to the School District's assertions, nothing in the statutory history of

section 296(4) of the Executive Law evidences a legislative intent to exclude public

schools. An earlier version of this statutory provision appeared in the 1935 version of

the Tax Law, and was subsequently moved in 1958 into the Human Rights Law.

This major legislative enactment also inserted the tax-exemption provisions of the

Tax Law into article four of the new Real Property Tax Law, placing the exemption for

not-for-profit entities, including not-for-profit schools, into section 420 (now section

420-a) and the tax exemption for public school properties into section 408.

Accordingly, the real property tax exemptions for both not-for-profit private schools

and public schools appear in article four of the Real Property Tax Law, bringing both

sorts of institutions within the scope of section 296(4) of the Human Rights Law.

Finally, the School District seeks support for its position in the Education Law.

The School District argues, as did the dissenting Appellate Division justice, that the

Education Law definition of "educational institution" excludes a public school district

from the reach of the Human Rights Law. Section 313 (2)(a) of the Education Law

defines an educational institution as "any educational institution of post-secondary

grade subject to the visitation, examination or inspection by the state board of

regents or the state commissioner of education and any business or trade school in

the state." Because this definition does not include a public school district, they

contend, a public school district is therefore not an educational institution. However,

this section of the Education Law, as pOinted out by the Appellate Division majority, is

17

narrowly addressed only to "unfair admissions and course enrollment practices as

they relate to post-secondary schools," and such practices are "irrelevant to public

primary and secondary schools." Notably, the definitional section of the Education

Law does not include any definition of "educational institution" even for the purposes

of that Chapter, much less any definition that can be exported into an entirely

separate statutory scheme.

The School District also contends that because the Legislature enacted a

prohibition against discrimination in the public schools in section 3201 of the

Education Law, a public school student's claims of racial harassment cannot be

investigated and adjudicated by the Division of Human Rights. However, Education

Law § 3201 speaks only to discrimination in the admissions process and to the

practice of compelling students to attend certain schools in order to achieve racial

equality in the student population. It does not encompass racial harassment, and a

student treated as was Epiphany Kearney does not fall within the scope of Education

Law § 3201.

Next, the School District contends that a student alleging racial harassment

who is not satisfied by the actions taken by school district administrators may "file a

complaint" with the Commissioner of Education under section 310 of the Education

Law. In the first instance, this constitutes a misreading of the statute, which does not

authorize the "filing of a complaint" but the filing of a formal petition for the review by

the Commissioner of various enumerated official actions, and of "any other official act

or decision of any officer, school authorities, or meetings concerning any other matter

under this chapter, or any other act pertaining to common schools." The School

District does not cite, nor has research revealed, any case addressing an instance in

18

which the type of conduct by school administrators that is at issue here has been

deemed an "official act or decision" within the meaning of Education Law § 310. In

any event, the School District undermines its own argument by pointing out that a

racially harassed public school student could also seek an administrative remedy

through the United States Department of Education under Title VI of the Civil Rights

Act, or through the federal courts. In other words, the remedy provided under

Education Law § 310, even if it were to extend to the actions at issue, is not

exclusive; the School District offers no reason why a student who could seek the

alternative remedies it mentions could not also seek an administrative remedy

pursuant to the Human Rights Law. As the Fourth Department held in SDHR v

BOCES (98 AD2d at 959), although BOCES was indeed subject to the Education Law,

"the Human Rights Division exercises concurrent jurisdiction over discrimination

claims (citation omitted)."

Finally, the Education Law does not provide for the broad range of remedies

available under the Human Rights Law, including monetary damages, to those who

have suffered from racial discrimination. There is no reason why every individual who

has suffered from racial discrimination should be entitled to such damages, except a

public school student.

POINT II

THE APPELLATE DIVISION'S CONCLUSION THAT THE SCHOOL DISTRICT HAD VIOLATED THE HUMAN RIGHTS LAW APPLIES THE

APPROPRIATE STANDARD OF REVIEW AND IS SUPPORTED BY SUBSTANTIAL EVIDENCE IN THE RECORD.

The School District argues on this appeal that the finding of the Third

Department that the District had "permitted students to engage in a course of

19

racially-motivated harassment of [Ms. Kearney's] daughter" should be vacated as a

matter of law, because that court did not "articulate and apply a legal standard that

afforded any deference to the District's administrators." As a threshold matter, the

School District did not raise that argument either before the Commissioner (A93 to

A94) or to the Appellate Division, other than to comment in passing in its brief to that

court that "the fact that the complainant may have wanted longer suspensions does

not mean that courts can ignore the discretionary judgment that school district

officials have exercised." (Petitioner's Brief to Appellate Division, at 44-45). The

argument is not properly before this Court

In any event, the Appellate Division, in upholding the determination of the

Commissioner, adhered to the well-established standard for review under the Human

Rights Law: whether the findings of the Commissioner were supported by substantial

evidence on the record, considered as a whole. As this Court has repeatedly made

clear, substantial evidence means "such relevant proof as a reasonable mind may

accept as adequate to support a conclusion or ultimate fact (citation omitted)." 300

Gramatan Avenue Associates v SDHR (45 NY2d 176, 180 [1978]). In addition, the

determinations of the Commissioner are accorded considerable deference because of

the Division's considerable expertise in evaluating discrimination claims and in

assessing whether the facts and the law support a finding of discrimination. See,

e.g., Matter of Mateo v NYSDHR (306 AD2d 484, 485c [3rd Dept 2002]; Matter of

Swamp Club Annex v White (167 AD2d 400,401 [2nd Dept 1990], Iv denied 77 NY2d

809 [1991]). The courts may not weigh the evidence or reject an agency's decision

even when the evidence in the record may be conflicting and "room for choice exists."

Matter of SDHR [Granel/e] v City of New York (70 NY2d 100, 106 [1987]).

20

The record evidence supporting the Commisioner's determination has been set

out both by the Appellate Division in its Opinon and Order and by respondent

Division in its brief to this Court. As this Court has noted, "[w]hen a rational basis for

the conclusion approved by the division is found, the judicial function is exhausted

(citations omitted)." CUNY-Hostos v State Human Rights Appeal Board (59 NY2d 69,

75 [1983]). Accordingly, what will be addressed here is the School District's separate

argument that the Appellate Division failed to articulate and apply the appropriate

legal standard.

The School District's argument, in addition to being incorrect, is essentially a

straw man. Although the Administrative Law Judge took the position that the analytic

framework for a claim of discrimination by an educational institution is that found in

federal decisions pursuant to Title VI of the Civil Rights Act and Title IX of the

Education Amendments (A26-A27), the Appellate Division in reviewing the Final

Order of the Commissioner evaluated it only under the well-established substantial

evidence standard appropriate to such a review, taking into account the deference

due the Commissioner under that standard. The Appellate Division specifically

referenced the AU's finding, confirmed by the Commissioner, that the School District

"repeatedly chose a course of action which both put the interests of the white male

perpetrators ahead of the interests of the black female student, and [this course of

action] was repeatedly shown to be, and acknowledged to be, ineffective in stopping

the discriminatory conduct," but did not invoke or even mention the "deliberate

indifference" standard. AlD. In other words, the Appellate Division recognized the

obligations of the School District to each of its students, but concluded that by putting

the interests of the harassers ahead of those of the victim, and allowing the

21

discriminatory conduct to continue, it had permitted the harassment of Epiphany

Kearney by reason of her race, within the meaning of Executive Law § 296[4].

Assuming arguendo that the Appellate Division's affirmance of the

Commissioner's Final Order somehow necessarily referenced the AU's view that the

standard of liability for an educational institution in a student racial harassment case

is whether or not the educational institution showed "deliberate indifference" to the

harassment, the federal case relied on primarily by the AU employing this standard

does not compel a different conclusion. As articulated by the Second Circuit in Gant v

Wallingford Board of Educ. (195 F3d 134, 141 [2nd Cir 1999]), deliberate indifference

to discrimination can be shown by the institution's actions or inactions in light of the

circumstances known to it, where the actions or inactions are "clearly unreasonable"

in light of those circumstances. In other words, the Appellate Division's

determination that the School District knew its actions were ineffective in stopping the

abusive conduct, yet did nothing further, meets this standard.

In any event, none of the cases cited by the District for the proposition that the

federal "deliberate indifference" standard is the appropriate legal standard involve

the New York State Human Rights Law. Saggio v Sprady (475 F Supp 2d 203 [EDNY

2007]) is a case addressing claims of civil rights violations pursuant to 42 USC §

1983, the federal civil rights enforcement statute. Barmore v Aida/a (2006 US Dist

LEXIS 46490, 2006 WL 1978449 [NDNY 2006]) involves claims of racial

discrimination and civil rights violations pursuant to 42 USC §§ 1981 and 1983. In

Crispim v Athanson (275 F Supp 2d 240 [D Conn 2003]), the claimant alleged

violations of due process and equal protection because of racial discrimination and

harassment in an action pursuant to 42 USC § 1983, as did the claimant in Yap v

22

Oceanside Union Free School Dist. (303 F Supp 2d 284 [EDNY 2004]). Indeed, the

Second Circuit in Gant explicitly stated that its "deliberate indifference" standard was

applicable to claims of "race discrimination in violation of the Fourteenth

Amendment." Gant, 195 F3d at 140.4

In sum, there was no necessity for the Appellate Division to "articulate a

standard of liability for 'permitting' the racial harassment of students by other

students in the public schools," as the School District contends. Our existing law has

already developed the appropriate standard for review of determinations under the

Human Rights Law, which was the one applied by the Appellate Division in reviewing

and upholding the Commissioner's determination here.

POINT III

THE AWARD OF DAMAGES TO AMELIA KEARNEY IS BOTH AUTHORIZED UNDER THE HUMAN RIGHTS LAW AND SUPPORTED

BY SUBSTANTIAL EVIDENCE IN THE RECORD.

As it did to the court below, the School District argues here that the

Commissioner's award of damages to Amelia Kearney was "improper," in part

because no cause of action exists for derivative claims under the Human Rights Law.

First and foremost, Ms. Kearney's claim is not derivative: she clearly asserted and

established that she was personally subject to discriminatory treatment by the School

District, which repeatedly ignored her complaints, prevented her from protecting her

4 The plaintiffs in Saggio, Barmore, Crispim and Yap also asserted various claims pursuant to state constitutional and tort law. In each case, the Federal court either dismissed or declined to address the state claims, without prejudice to their being reasserted in a subsequent state court proceeding.

23

daughter from the racial discrimination to which she was subjected, and treated her

dismissively and with contempt, and testified to the mental and emotional anguish

she thereby suffered at the hands of the District. Section 297(9) of the Executive

Law recognizes that "any person" aggrieved by an unlawful discriminatory practice

has a claim for damages under that law.

Second, the authority cited by the School District for the proposition that the

Human Rights Law does not recognize derivative claims does not support so sweeping

a conclusion. Those cases stand only for the narrower proposition that the Human

Rights Law does not recognize claims for loss of consortium by the spouse of an

employee alleging discrimination (see Hart v Sullivan, 84 AD2d 865, 866 [3rd Dept

1981], affd 55 NY2d 1011 [1981]; Belanoff v Grayson, 98 AD2d 353, 358 [1st Dept

1984][relying on Hart]; Spoon v American Agriculturist, 120 AD2d 857, 860 [3rd

Dept 1986] [relying on Belanoff); Rich v Cooper Vision, Inc. (198 AD2d 860, 861 [4th

Dept 1993][relying on BelanoffJ).

The cases relied on by the School District for the proposition that a parent

cannot recover for loss of consortium because of injuries suffered by his or her minor

child are not even cases decided under the Human Rights Law but under the common

law of tort (Gilbert v Stanton Brewery, Inc., 295 NY 270 [1946]; Devito v Opatich,

215 AD2d 714 [2nd Dept 1995]).

The sole case offered by the School District involving a parent-child

relationship and a claim other than one for the loss of consortium is Cavello v

Sherburne-Earlville Central School Dist. (110 AD2d 253, 255 [3 rd Dept 1985], appeal

dismissed 67 NY2d 601, appeal and Iv dismissed 67 NY2d 647 [1986]). The Third

Department in Cavello concluded that the parents had no cause of action for the

emotional distress they had experienced because their children had been bullied;

24

however, the court's holding was grounded solely in the tort law principle set out in

Bovsun v Sanperi (61 NY2d 219 [1984]: there is recovery in tort for emotional or

mental anguish only where the plaintiff suffers those injuries because of

contemporaneous observation of the serious injury or death of a family member and

the plaintiff himself is also exposed to a risk of bodily injury or death. Cavello is not a

case under the Human Rights Law; it is standard tort law, and inapplicable here.

Contrary to respondent's assertion, the law does not categorically exclude a

claim under the Human Rights Law for a parent's own emotional injuries incurred

through witnessing the suffering of her child because of discriminatory conduct.

As noted above, however, Ms. Kearney's claim is not grounded in the injuries

inflicted on her daughter: she offered evidence and testimony that she was

personally subjected to the District's discriminatory actions and, as the Appellate

Division recognized, is herself entitled to seek relief under Section 297(9) of the

Executive Law, which recognizes that "any person" aggrieved by an unlawful

discriminatory practice has a claim for damages under that law.

The School District also contends, though only in passing and without

discussion or citation to authority, that the award must be vacated because Ms.

Kearney's administrative complaint did not explicitly include a claim on her own

behalf. Appellant's Brief, at 45. The School District thus ignores the extraordinary

discretion afforded the Commissioner in fashioning a remedy under the Human Rights

Law.

For example, in Matter of Sherwood Terrace Apts. v NYSDHR (61 AD3d 1333,

1334 [4th Dept 2009]), the Commissioner determined that the complainant Carol

Gostomski, a tenant of the respondent building, had been discriminated against by

the building's refusal to rent her an apartment after learning that she had two small

25

children. The Commissioner awarded compensatory damages not only to Ms.

Gostomski, who brought the complaint solely in her name and only her own behalf,

but to her two children as well. The appellate court concluded that the award of

compensatory damages both to the complainant and to her children was proper and

would not be disturbed.

In Price v Southwest Airlines (66 AD3d 1267, 1269 [3rd Dept 2009], Iv

dismissed 14 NY3d 858 [2010], rearg denied 15 NY3d 800 [2010]), the

Administrative Law Judge, in determining whether the respondent had permitted a

racially hostile environment, noted that all the incidents cited by the petitioner were

time-barred under the Human Rights Law; however, the AU took them into

consideration when making her determination, and the Third Department confirmed

the Division's determination, although it was based on the time-barred incidents,

noting that such determinations are "entitled to considerable deference due to [the

Division's] expertise in evaluating discrimination claims."

In Matter of New York State Energy Research and Dev. Auth. v NYSDHR (50

AD3d 1361, 1363 [3rd Dept 2008]), the Third Department upheld the Commissioner's

determination that the petitioner had retaliated against the complainant, even though

the petitioner was not the complainant's employer at the time the retaliation

occurred, based on the relationship between the petitioner and the complainant's

actual employer. Rejecting the petitioner's assertion that the award of damages was

improper, the court reiterated that "'[t]he [SDHR] has broad powers to adopt

measures which [it] reasonably deems necessary to redress the injury' (Matter of

Imperial Diner v State Human Rights Appeal ad., 52 NY2d 72, 79 [1980]; see Matter

of New York City Tr. Auth. v State Div. of Human Rights, 78 NY2d 207, 217 [1991])."

In Imperial Diner, this Court specifically noted the "broad powers" of the

26

Commissioner "to adopt measures which he reasonably deems necessary to redress

the injury" and noted that the standard of review applicable to the remedy fashioned

by the Commissioner is whether it is "reasonably related to the discriminatory

conduct which he found to exist (citation omitted)." Imperial Diner, 52 NY2d at 79.

Accordingly, the award of compensatory damages to Amelia Kearney was well

within the broad remedial powers of the Division and, as modified in amount by the

Appellate Division, should be confirmed by this Court.

POINT IV

PURSUANT TO THE STATE ADMINISTRATIVE PROCEDURE ACT, THE SCHOOL DISTRICT HAS WAIVED ANY OBJECTION TO

THE DIVISION'S JURISDICTION.

In 1975, the New York State Legislature enacted the State Administrative

Procedure Act (SAPA), applicable to all administrative agencies in the state, other

than those specifically or impliedly exempted by the language of the statute itself.

The State Division of Human Rights is, accordingly, subject to the provisions of SAPA.

See 300 Gramatan Ave. Assoc. v SDHR (45 NY2d 176, 181 [1978]); SAPA §§ 101

and 102(1).

Section 301(5) of SAPA provides that "[u]nless precluded by statute,

disposition may be made of any adjudicatory proceeding by stipulation, agreed

settlement, consent order, default, or other informal method." Although the majority

of the case law developed under this section addresses the issue whether a

stipulation of settlement agreed to between the parties and accepted by the

administrative law judge was subsequently binding on the parties (see, e.g., Stefanis

v NYSDHR, 244 AD2d 342 [2nd Dept 1997]), this Court has recognized both the broad

27

operative effect of section 301(5) and the concomitant right of individuals and entities

to informally adjudicate various aspects of agency-related disputes. In Matter of

Farina v State Liquor Authority (20 NY2d 484 [1968]), even prior to the enactment of

SAPA, this Court recognized that in an administrative agency adjudicatory proceeding,

an individual who has agreed to a particular procedure may be estopped from

subsequently raising an objection to it. Id. at 491-492.

This Court later made it clear that this principle remains viable and applicable to

agency proceedings conducted subject to SAPA. In Nostima Foods v State Liquor

Authority (71 NY2d 648, 652 [1988]), the agency accepted the petitioner's proffered

settlement in a proceeding to revoke or cancel its liquor license, which settlement

included the imposition of a fine. The Court agreed that the Authority was required to

return the fine, with interest, and proceed with the suspension hearing; the agency's

own regulations contemplated compromises only in connection with suspension

proceedings and not in connection with the imposition of fines and criminal penalties.

The Court further noted that the petitioner was not in that case estopped from

challenging the SLA's power to impose a fine, because a fine, "being punitive in

nature, may only be imposed by the Legislature." In reaching this conclusion, the

Court explicitly distinguished the situation in Nostima Foods from that in Matter of

Farina, on the basis the Farina did not involve the imposition of a criminal sanction

and therefore was "not determinative" with respect to the type of agreement at issue

in Nostima Foods. Id. at 652.

As set out in the uncontroverted Affirmation of Raymond M. Schlather (A57 to

A61), following the filing of the underlying Human Rights complaint in January 2006,

the School District in its response challenged the jurisdiction of the Division over that

complaint. After conducting its investigation, conducting a probable cause hearing,

28

and receiving written submissions from the parties, the Division concluded both that it

had jurisdiction and that probable cause existed to believe that the School District

had engaged in an unlawful discriminatory practice. The School District then sought

in an Article 78 proceeding a determination from Supreme Court that the Division had

no jurisdiction; Supreme Court concluded in its decision that it had no basis for

concluding that the Division did not have jurisdiction. The School District then

appealed that decision to this Court, but discontinued and withdrew its appeal on the

issue of jurisdiction.

The hearing on the complaint was noticed for December 19 and 20, 2007.

Prior to and at the commencement of the hearing, the Administrative Law Judge

expressly noted that the School District had agreed to the jurisdiction of the Division

and was going forward with the hearing, without any objection being stated by

counsel for the School District. After the hearing, each party submitted its proposed

Findings of Fact and Conclusions of Law to the Administrative Law Judge; the School

District's submission included no objection to, or even mention of, any issue

concerning the Division's jurisdiction over the complaint.

Accordingly, by agreeing at the public hearing to accept the jurisdiction of the

Division, the School District has waived any objection to the exercise of jurisdiction by

the Division, and is estopped from making such objection, either before the Appellate

Division or before this Court.

CONCLUSION

The Appellate Division correctly determined under well-established principles of

statutory construction that the public school districts of this state are subject to

29

jurisdiction under the Human Rights Law. For this reason, and for all the additional

reasons set forth above, this Court should affirm the Order of the Appellate Division,

Third Department, in all respects.

Dated: Ithaca, New York February 28, 2012

Respectfully submitted,

SCHLATHER, STUMBAR, PARKS, & SALK, LLC Attorneys for Respondent Amelia Kearney

Raymond M. Schlather and Diane V.Bruns, of counsel

30