Last month we blogged about a decision by the Ithaca, New York school board to challenge the applicability of the state human rights law to schools, a legal strategy aimed at avoiding the jurisdiction of the local human rights commission investigating incidents of race discrimination at one of the local schools. This decision was controversial in town, as people wanted the school district to take responsibility for the underlying incident rather than raise a jurisdictional challenge to the human rights law. It was also controversial because had the school board won on appeal, the only law applicable in New York that provides any protection against discrimination on the basis of sexual orientation would have been nullified in the education context.
What we haven't yet mentioned here is that the school district reversed its decision and dropped its challenge to the applicability of the state human rights law. This decision, as well as the leadership of the board member Seth Peacock (who was my classmate in law school) in the efforts to reconsider, was praised by an Ithaca Journal editorial. The editorial also went on to point out that while the human rights law's applicability to schools is safe for now, other schools in the future could borrow the argument Ithaca would have used, which, if successful, would leave students lacking the broader protection that the human rights law affords.
The editorial suggests that in light of this uncertainty, we should strengthen state and federal statutes that prohibit discrimination in public schools so that plaintiffs need not rely on the human rights law for the broader level of protection it provides. A fine idea, but a long shot strategy, at least at the federal level. President Bush has indicated he will veto the Employment Nondiscrimination Act, which would prohibit employers from discriminating on the basis of sexual orientation. It's hard to imagine that the current administration would support an effort to enumerate protection on the basis of sexual orientation in laws like Title IX.
In New York, though, an easier solution might be to amend the human rights law to clarify its applicability to schools. Arguably, its public hearing provisions are inconsistent with federal laws protecting students' privacy. But the legislature could amend the hearing provisions to be consistent with privacy laws, such as by allowing schools to call for closed hearings and a sealed record when necessary. A procedural amendment aimed at protecting privacy is far less likely to be controversial than an effort to expand antidiscrimination laws.