9830205, Alston - Ruling

Commission on Human Rights and Opportunities : ex rel. Dawn Alston on behalf of Terrel Alston,
Complainant, CHRO # 9830205
v.
East Haven Board of Education,
Respondent

May 3, 2000

Ruling on Motion to Dismiss

I. Procedural Background

On October 15, 1997, Dawn Alston filed an Affidavit of Illegal Discriminatory Practice ("complaint") with the Commission on Human Rights and Opportunities ("Commission") on behalf of her minor son, Terrel Alston ("Complainant"). The complaint alleged that the Complainant was discriminatorily denied services by the East Haven Board of Education ("Respondent"), based on his race (African American), color (black) and his mother’s sexual orientation (lesbian). An investigator found reasonable cause that discrimination had occurred and attempted to conciliate the matter. After these attempts failed, the complaint was certified on January 26, 2000 and was assigned to the undersigned Human Rights Referee for public hearing.

On March 29, 2000, the Respondent filed a motion to dismiss the complaint on the grounds that this agency does not have subject matter jurisdiction over the complaint and that the Commission is the wrong forum to address grievances related to special education services and the educational environment. On April 13, 2000, the Commission filed a memorandum in opposition to the Respondent’s motion to dismiss disputing the Respondent’s claims. On April 25, 2000, the Respondent filed a reply memorandum in support of its motion to dismiss.

II. Standard

In reviewing a motion to dismiss, facts alleged or implied in the complaint must be construed in a light most favorable to the non-moving party. Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). "A motion to dismiss tests, inter alia, whether on the record, the court is without jurisdiction." Pearson v. Bridgeport Hydraulic Co., 141 Conn. 646, 648, 109 A.2d 260 (1954); Upson v. State, 190 Conn. 622, 624, 461 A.2d 991 (1983).

III. Facts

The Complainant attended Deer Run Elementary School in East Haven, a public school run by the Respondent, from May of 1996 to September 17, 1997. The complaint alleges, inter alia, that while the Complainant attended the Respondent’s school, his mother asked that he be placed in a different setting, but he was not (complaint ¶3). It was also alleged that the Complainant was not provided services, but was rather sent to the principal’s office (¶4). Further, it is charged that an ADHD (Attention Deficit Hyperactivity Disorder) evaluation and one-on-one aide were requested for the Complainant, but were never provided (¶6). The Complainant also contends that he endured racial slurs by classmates while attending the Respondent’s school (¶13). It was also alleged that his home life (i.e., mother being a lesbian ¶1) or his race/color (¶19) was the cause of the Complainant’s difficulties at school (¶¶14, 16).

IV. Applicable Law

On the complaint, in addition to listing twenty-nine allegations of discrimination in narrative form, multiple boxes were checked on a pre-printed form provided by the Commission to indicate the statutes under which she was bringing an action on behalf of her son. The boxes checked include: General Statutes §§ 46a-60(a)(1), 46a-64a, 46a-81,¹ 46a-75, 10-15c, as well as Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, as enforced through § 46a-58(a). Apparently, not all of these statutes were meant to be checked or were checked in error, as evidenced by the narrative allegations. The Commission points out in the introduction to its memorandum in opposition to the motion to dismiss that the reference to the state and federal employment laws is "simply a mistake." Based on this representation, I shall deem the claims brought under General Statutes § 46a-60(a)(1), Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 waived. Furthermore, in its motion to dismiss, the Respondent makes the assumption (correctly, I believe) that the Complainant meant to select General Statutes § 46a-64(a) instead of 46a-64a (a statute that was repealed in 1990). Accordingly, this ruling addresses the allegations brought pursuant to General Statutes §§ 46a-64(a), 46a-75² and 10-15c, as enforced through § 46a-58(a), the only statutes I believe to be at issue in this ruling and case.

V. Discussion

1. Public Schools as Public Accommodations

There is no debate that the Commission has jurisdiction over discriminatory practices that occur in places of public accommodation, since § 46a-64(a) is included in the list of discriminatory practices defined in § 46a-51(8). Respondent, however, argues that public schools are not places of public accommodation because they do not fall within the definition provided in the statutes. The Commission does not brief this issue in its memorandum.

A place of public accommodation is defined as "any establishment which caters or offers its services or facilities or goods to the general public." General Statutes § 46a-83. "If the language of a statute is plain and unambiguous, we need not look beyond the statute because we assume that the language expresses the intention of the legislature." Quinnipiac Council v. Commission on Human Rights and Opportunities, 204 Conn. 287, 294 (1987). A review of the plain language of the statute reveals that, on its face, the statute does not apply to public schools. A public school, such as the Deer Run School operated by the Respondent, may be characterized as an "establishment . . . which offers its services", namely education. These educational services, however, are not offered to the "general public". Educational services are offered only to specific individuals, namely students deemed eligible by the town’s board of education, typically those residing in the town itself and within a specific age range. Such a limited group of individuals cannot be considered the "general public". Furthermore, public schools are not listed in the definition of public accommodation in the General Statutes themselves. See General Statutes § 46a-63(1).

Additionally, Human Rights Referee Lisa B. Giliberto recently provided an exhaustive state-by-state review of cases deciding whether public schools are public accommodations and found that "every state decision that did conclude public schools to be public accommodations did so because their state statutes specifically defined public accommodations to include public schools." (Emphasis in original, citations omitted.) Commission on Human Rights and Opportunities ex rel. Chillon Ballard v. Cheshire Board of Education, et al., CHRO Case #9830294 (Ruling on Respondents’ Motion to Dismiss, 7/15/99, page 8). In states where public accommodations are not specifically defined as including public schools, the courts have uniformly ruled that public schools are not public accommodations. See, e.g., Harless v. Darr, 937 F.Sup. 1351 (S.D.Ind. 1996); Kansas Commission on Civil Rights v. Topeka Unified School District No. 501, 243 Kan. 137, 755 P.2d 539 (1988).

The above analysis leads me to conclude that in Connecticut, public schools are not places of public accommodation. Because of this definition, there is no possibility of violation of either subdivision of subsection (a) of Section 46a-64³ since there is no "place of public accommodation" at issue. Accordingly, the Complainant’s claim pursuant to this section is dismissed.

General Statutes § 10-15c states in pertinent part:

At first glance, it seems that this statute covers the situation in the case at hand. The Respondent, however, contends that the Commission has no authority to enforce this statutory section because the legislature assigned these specific responsibilities to the Department of Education.

In order to resolve this issue, General Statutes §§ 46a-82 and 46a-51(8) must be reviewed, as they define the jurisdiction of the Commission. Section 46a-82(a) provides in pertinent part that, "any person claiming to be aggrieved by an alleged discriminatory practice . . . may . . . make, sign and file with the commission a complaint." A "discriminatory practice" is defined as "a violation of section 4a-60, 4a-60a, 46a-58, 46a-59, 46a-60, 46a-64, 46a-64c, 46a-66, 46a-68, sections 46a-70 to 46a-78, inclusive, subsection (a) of section 46a-80, or sections 46a-81b to 46a-81o inclusive." General Statutes 46a-51(8). Section 10-15c is not specifically on the list of enumerated "discriminatory practices".

The Commission argues that while § 10-15c is not included within the specific list, the Commission still has jurisdiction over this subject matter in much the same way that the Commission has jurisdiction over violations of federal laws which are also not specifically included in the list of discriminatory practices in § 46a-51(8), namely through § 46a-58(a).⁴ I disagree. It is undisputed that the Commission has jurisdiction over the federal laws through General Statutes § 46a-58(a) to pursue claims of violations of federal civil rights and employment discrimination laws. Allowing these specific laws to be pursued through § 46a-58(a) does not, however, grant the Commission unlimited authority to pursue any statute enumerated in the Connecticut General Statutes under the auspices of § 46a-58(a). Such a broad interpretation would eviscerate the definition of a "discriminatory practice" in § 46a-51(8).

Furthermore, Human Rights Referee Giliberto recently provided an extensive legislative history of § 10-15c where she wrote,

Commission on Human Rights and Opportunities ex rel. Chillon Ballard v. Cheshire Board of Education, et al., CHRO Case #9830294 (Ruling on Respondents’ Motion to Dismiss, 7/15/99, page 5). It is clearly the legislature’s intent for these matters to be pursued by the Department of Education. See also, Commission on Human Rights and Opportunities ex rel. Colleen Atlas v. Hamden High School, Connecticut Interscholastic Athletic Conference, Inc., CHRO Case # 7930381 (Memorandum of Decision, 8/20/80) (holding that the specific statute § 10-15c governs discrimination in public school activities and programs rather than the more general statute covering discrimination in public accommodations.) Furthermore, Connecticut courts have consistently held that § 10-15c is "to be enforced specifically by the State Board of Education pursuant to § 10-4b." McPhail v. City of Milford, 1999 WL 126796 (Conn.Super.), Docket No. 054506S, February 25, 1999 (Thompson, J.). See also, Price v. Wilton Public School District, 97 CV02218 (AVC) (D. Conn., September 23, 1998).

The Commission suggests that at the very least cases such as this one should be transferred to the appropriate state agency, namely the Department of Education, for further processing. The Commission has not provided, nor am I aware of, any procedural means to accomplish such a transfer. Absent a court ruling⁵ or legislative guidance⁶ on this topic, I am not able to fulfill this request.

For the reasons discussed above, the motion to dismiss is granted as to the Complainant’s claims pursuant to General Statutes § 10-15c.

    C.    The Commission’s Jurisdiction over General Statutes §§ 46a-75 and 46a –81m⁷

The Respondent argues that the Commission does not have jurisdiction over General Statutes § 46a-75⁸ which states,

The Commission places particular emphasis on the language "or in which state agencies participate" and argues that the state does in fact participate in the educational programs called public schools. The Commission argues that § 10-4 requires the State Board of Education to "supervise" all educational programs that are run by local and regional boards of education and that "supervision" must surely rise to the level of "participation" required to exercise jurisdiction over § 46a-75 claims of discrimination. I disagree.

Although I do not find the statutory language as clear and unambiguous as does the Commission and would appreciate the guidance legislative history often brings, there is no legislative history to illuminate what the legislature meant by programs "in which state agencies participate." Even in the absence of legislative history, "[t]here is a presumption that the legislature, in enacting a law, does so with regard to existing relevant statutes so as to make one consistent body of law." State v. Murtha, 179 Conn. 463, 466 (1980). (Citations omitted.)

It would be illogical for the legislature to allow the co-existence of §§ 10-15c and 46a-75 with the intent that they both apply to the same potential discriminatory practices. The fact that § 10-15c exists is strong evidence of the legislature’s intent that § 46a-75 does not govern discrimination claims in the public schools. Further evidence exists in that § 10-15d (and not § 46a-75) extends the non-discrimination provisions of § 10-15c to other types of public schools, such as the unified school districts and vocational technical schools. In statutory interpretation, courts generally "presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions." (Citations and internal quotations omitted.) Paige v. Town Plan and Zoning Commission of Town of Fairfield, 235 Conn. 448, 455 (1995), citing Turner v. Turner, 219 Conn. 703, 713 (1991). If § 46a-75 were to apply to all public schools, §§ 10-15c and 10-15d would be rendered superfluous and therefore meaningless.

Reference to § 46a-75 in § 46a-68-3 of the Regulations of Connecticut State Agencies ("Regulations") further supports the contention that § 46a-75 is not meant to apply to public schools but rather to state apprenticeship and training programs. This regulation gives the Commissioner of the Department of Labor the authority to implement equal opportunity/affirmative action policies and procedures, specifically non-discrimination in training programs under § 46a-75. The scope and purpose section of these Regulations reveals that their aim is "to promote equality of opportunity in State approved and registered apprentice training programs . . . and apply to the recruitment, selection, employment and training of apprentices." § 46a-68-1. Under my analysis, the state’s "participation" in § 46a-75 is defined as approval and registration of apprenticeship and training programs and thus is given a separate and distinct area of jurisdiction from § 10-15c.

For these reasons, I believe that the legislature did not intend for General Statutes § 46a-75 to apply to public schools and therefore these allegations must also be dismissed.

VI. Conclusion

For the reasons discussed above, it is concluded that: (1) public schools are not public accommodations under General Statutes § 46a-64(a); (2) the Commission on Human Rights and Opportunities does not have jurisdiction over allegations of discrimination brought pursuant to General Statutes § 10-15c; and (3) General Statutes §§ 46a-75 and 46a-81m do not cover public schools. Accordingly, the motion to dismiss is GRANTED and the complaint is accordingly DISMISSED.

It is so ORDERED and dated at Hartford, this _____ day of May, 2000.

_________________________

Hon. Lara L. Manzione
Presiding Human Rights Referee

C: Ms. Dawn Alston
David Teed, Esq.
Christopher M. Hodgson, Esq.

Endnotes:
¹    It is unclear from the copy of the complaint which subsection of § 46a-81, if any, was checked. Although the Respondent contends that the Complainant checked a box for General Statutes § 46a-81 (statutes controlling law enforcement agencies excepted), and the Commission listed said section in its introductory paragraph of its memorandum in opposition, reference is made to § 46a-81m in the Commission’s argument. Section 46a-81 is an employment statute and was likely therefore, "simply a mistake," as are the other employment statutes. The claim under § 46a-81 shall be deemed abandoned but I will address the statute most likely intended to be cited and supported by the narrative allegations, namely § 46a-81m, the corollary to § 46a-75 for sexual orientation discrimination.

2     The language in § 46a-81m is virtually identical to that of § 46a-75 (discrimination in educational and vocational programs) and for purposes of this memorandum, the claims under both sections will be addressed simultaneously.

3     Section 46a-64(a) states in pertinent part that, "[i]t shall be a discriminatory practice in violation of this section: (1) To deny any person within the jurisdiction of this state full and equal accommodations in any place of public accommodation, resort or amusement because of race, creed, color, national origin, ancestry, sex, . . . subject only to the conditions and limitations established by law and applicable alike to all persons; (2) to discriminate, segregate or separate on account of race, creed, color, national origin, sex, . . . .

4     General Statutes § 46a-58(a) reads in pertinent part that, "[i]t shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of religion, national origin, alienage, color, race, sex, blindness or physical disability."

5     The Commission bases this argument on a New Jersey Supreme Court decision which held that there was concurrent jurisdiction over sex discrimination claims between the New Jersey Division on Civil Rights and Department of Education based on the fact that, in New Jersey, public schools are statutorily defined as places of public accommodation and thus were required to transfer a case from the Division to the Department. Hinfey v. Matawan Regional Board of Education, et al., 77 N.J. 514, 391 A.2d 899 (1978). I agree with the Respondent that based on these facts, the Hinfey decision is inapposite.

6     General Statutes § 51-347b outlines the process by which a civil action or cause may be transferred because it has been made returnable to an improper location. This statute, however, applies only to courts and not to the transfer of matters between administrative agencies such as the Commission and the Department of Education.

7    See footnote 2.

8     The language for § 46a-81m tracks identically to that of § 46a-75 up until the protected class basis, where the words "race, color, religious creed, sex, age, national origin, ancestry, mental retardation, learning disability or physical disability, including, but not limited to, blindness." are replaced with "sexual orientation."