I used to live in NYC, so while this blog is focused on Washington law I do still try to keep up with what’s happening back in the Empire State. I was particularly interested in a recent Court of Appeals decision (that’s the highest state court in New York) interpreting the New York Human Rights Law (“HRL”) that provides antidiscrimination and antiharassment protections to students. According to the Court of Appeals, the statute doesn’t protect public school students. Apparently, the New York antiharassment law only applies if you’re privileged enough to attend a private school.
Mike Kavey at the Columbia Law School Gender & Sexuality Law Blog (go Lions!) has the full story about what this decision means and why it’s terrible:
The decision converts HRL Section 296(4)—one of the broadest, most inclusive, and most powerful state-level student-civil-rights measures in the nation—into a legal remedy available only to a narrow class of privileged individuals; namely, those who can afford private education. The ruling marks a painful setback for civil rights in New York, particularly for the rights of lesbian, gay and bisexual (LGB) youth; this is because HRL Section 296(4) is the only civil rights measure under New York or federal law to specifically authorize students to file suit when school officials permit harassment based on sexual orientation. The court’s decision also contributes to racial and economic injustice, in that public school students, who are more likely to be racial minorities and more likely to come from lower-income families than their private-school counterparts, can no longer access the uniquely affordable procedures and resources available to those who file HRL discrimination complaints with the State Division of Human Rights.
As they say, you should read the whole thing.
I want to add one thought on the Court of Appeals’ decision (which you can read in full here), because it uses a method of statutory interpretation that I’ve seen used before, and which I always find woefully unconvincing.
Are public schools covered by the HRL statute at issue? Well, the statute uses the term “education corporation or association” to describe the entities to which its protections apply. So is a public school an “education corporation or association”? Well, to answer that question the Court looked to New York Tax Law, which uses the exact same phrase. (The Columbia Gender & Sexuality Law Blog explains why that’s not where the Court should have looked, but here I’m just taking the Court’s analysis as I find it.) The Tax Law uses the relevant term to “refer to private, non-sectarian entities that owned ‘educational’ property utilized for a public purpose,” not to public educational entities. Therefore, according to the Court of Appeals, “the fact that such language was taken directly from the Tax Law and moved to [the HRL] bespeaks the Legislature’s intention that the term was to have the same meaning in the [HRL] as it did in [the Tax Law].”
Now, I think it’s fine as a starting point, or even a rebuttable presumption of sorts, to assume that when the legislature uses a specific phrase in one statute, then they mean the same thing when they use the same phrase in another statute. But that’s not what the Court of Appeals is doing here. Rather, the Court of Appeals’ observation of phrasal identity ends its inquiry – without ever asking whether the reasoning makes any sense in this context.
In my view, the reasoning is wholly inapplicable here. Sure, the phrase “education corporation or association” applies only to private schools in the Tax Law. Do you know why? Because it doesn’t make any sense to apply a tax law to a public school. As the Court of Appeals recognized: “a public school district receives its tax-exempt status by virtue of the fact that it is public.” There was no need for the legislature, in drafting the Tax Law, to define “educational corporation or association” in a way that differentiated between public schools and private schools. Public schools, by their very nature, were excluded from the statutory system. In other words, the term doesn’t apply to public schools because the entire statutory scheme doesn’t apply to public schools, not because of some special definition of the term itself.
And that gets to my general problem with “same phrase, different place” methods of statutory interpretation. They are often much too myopic. Some statutory schemes are extremely narrow: the Washington Condominium Act applies only to condos; the Washington Cooperative Associations Act applies only to coops. If a phrase from one of those statutes were employed in a statute of general applicability, it would be silly to assume that the legislature intended that aspect of the general statute to apply only to coops, or only to condos. Rather, you’d want a reviewing court to look a little deeper, to see which usage makes more sense in context, and to examine the general statutory scheme as a whole.
Moreover, if you’re going to go delving into legislative history (which is what the Court of Appeals claimed to be doing) then perhaps you should look at the history of why the particular phrase was used in both places, not just the fact that it was used in both places. Maybe (gasp!) the legislature just did a little copying and pasting without really thinking through those implications. I mean, if the legislature wanted to exclude public schools, there are better ways to do it than the double-bank-shot method of impliedly excluding them by importing a subtle term of art from a tax statute. Just sayin…