Long-time readers with good memories may recall that in 2007, we blogged about a case against the Ithaca (New York) school district, in which plaintiffs claimed that school officials violated the state's primary nondiscrimination statute, the New York Human Rights Law, by failing to protect the student from racial harassment. The school board defended itself by arguing that the statute does not pertain to public schools due to the statute's exemption for "public corporations" and recently, the state's highest court agreed.
This decision leaves New York students without a state law remedy to challenge schools' inadequate responses to bullying and harassment -- whether based on race, sex, sexual orientation, or other protected categories -- that allows for the possibility of money damages. Federal laws Title IX and Title VI plug that gap with respect tor sex and race claims, respectively, but there is no federal law protecting against discrimination based on sexual orientation. Compared to students in states that do have strong antidiscrimination laws that cover sexual orientation and apply to schools, New York students targeted for harassment on those grounds are in a particularly vulnerable position in the law. My hope is that this vulnerability demonstrates to New York politicians the need to amend the Human Rights Law to apply to public schools, and/or provide ammunition to Congress to pass the Student Non-Discrimination Act, which would prohibit schools from tolerating bullying and harassment on the basis of sexual orientation.
