9830294, Ballard - Ruling re R's Motion

 CHRO No. 9830294

Commission on Human Rights and Opportunities, ex rel. : Chillon Ballard, Complainant
v.
Cheshire Board of Education and : July 15, 1999 Dr. Thomas Neagle, Respondents

RULING ON RESPONDENTS’ MOTION TO DISMISS

This matter involves a public high school student’s claims of student-on-student racial harassment and the high school administration’s subsequent alleged discriminatory application of discipline and ultimate failure to act to eliminate the alleged harassment. The complaint alleges that the Respondents violated:

The Respondents, the Cheshire Board of Education and Dr. Thomas Neagle, have filed a Motion to Dismiss arguing that the Connecticut Commission on Human Rights and Opportunities (hereinafter, the "Commission") does not have jurisdiction over complaints alleging discrimination in public schools.

The issues presented are: 

For the reasons hereinafter set forth, it is concluded that: 

Accordingly, the Motion to Dismiss is GRANTED in part and DENIED in part.

The complaint alleges that in response to each being called "nigger" by a white student, the Complainant and his friend had a fight with this student (¶1). The Complainant and his friend were both suspended for three days, while the white student was not, even though the Cheshire High School Parent and Student Handbook provides that all students involved in fights will be suspended (¶1). Upon his return from suspension, the Complainant was again subjected to daily and repeated threats and harassment from this same student (¶2). Although these incidents were all reported to the Respondent principal, Dr. Thomas Neagle (hereinafter, "Neagle"), and finally a meeting was held among the Complainant, his mother, and Neagle, the Complainant was told that nothing would be done (¶¶2,3). Consequently, the Complainant withdrew from the school (¶3). It is alleged that these actions constitute violations of General Statutes

§§ 10-15c, 46a-64(a)(1) and (2), as enforced through § 46a-58(a); and § 46a-75.

In reviewing a motion to dismiss, a tribunal must construe those facts alleged or implied in the complaint in a manner most favorable to the pleader. Pamela B. v. Ment, 244 Conn. 296, 308, 709 A.2d 1089 (1998). "A motion to dismiss tests, inter alia, whether, on the face of 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).

The Respondents argue that discrimination claims involving access to public schools are governed by General Statutes § 10-15c, a statute over which the Commission does not have jurisdiction.

The Commission responds that it actually has concurrent jurisdiction over § 10-15c with the Connecticut State Board of Education because the Commission is given jurisdiction over all complaints claiming aggrievement by a discriminatory practice through General Statutes §§ 46a-82(a) and 46a-83(c). Furthermore, § 46a-54(3) imposes an ongoing duty on the Commission to investigate and proceed in all cases of discriminatory practices.

Section 10-15c provides, in relevant part:

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:

Section 46a-51(8) defines a discriminatory practice as:

General Statutes § 10-15c of the General Statutes is not included within the list of items comprising a discriminatory practice. Because the Commission only has jurisdiction over discriminatory practices as defined above, the Complainant’s claims pursuant to that statute therefore cannot be adjudicated by the Commission.

Notwithstanding the definition of discriminatory practice within the General Statutes, the Commission argues that it "has an ongoing duty to investigate and proceed in all cases of discriminatory practices" pursuant to General Statutes § 46a-83(c). I find that because § 10-15c is not included within the very specific list defining "discriminatory practice," as prescribed by the legislature, the Commission cannot investigate and proceed pursuant to this statute.

A review of the legislative history provides additional support to substantiate the position that the Commission does not have jurisdiction over § 10-15c. Around 1980, an overhaul of the general statutes was undertaken by the Commission and the Law Revision Commission. See Transcript of Judiciary Committee Hearings, Part 4, at Page 1097, March 20, 1980. House Bill 5942 consolidated all of the substantive provisions within the general statutes that were enforced by the Commission into the current, single chapter. Id., at 1104. Section 10-15c, in existence at that time, was not included in that consolidation. The legislature therefore had the opportunity to grant this authority to the Commission and failed to do so.

A Connecticut superior court addressed § 10-15c in a private suit alleging racial discrimination against a city and its board of education. In McPhail v. City of Milford, 1999 WL 126796 (Conn.Super.), docket No. 054506S, February 25, 1999 (Thompson, J.), the plaintiff claimed that the discrimination by the city and its board of education pursuant to § 10-15c deprived her of a free public education pursuant to the Connecticut Constitution. Id. Citing a Connecticut district court case, discussed infra, the court held that § 10-15c was "to be enforced specifically by the State Board of Education pursuant to § 10-4b." Id. Even though the claim was one of discrimination, the court did not refer the matter to the Commission or to the State Board of Education. Instead, it identified the State Board of Education as the only state agency qualified to address the claims under § 10-15c. This ruling lends more credence to the position that the Commission does not have authority to process claims brought under § 10-15c.

The McPhail court based its decision in part on a ruling by Chief United States District Court Judge Alfred V. Covello on a similar motion to dismiss in the currently pending matter, Price v. Wilton Public School District, 97 CV02218 (AVC) (D.Conn. September 23, 1998). In Price, Judge Covello determined there was no private cause of action under § 10-15c because "it would be inconsistent with the legislative purpose of § 10-4b, namely that the State Board of Education should have oversight of enforcement of the anti-discrimination provisions of § 10-4a and § 10-15c." Id. at page 12. Once again, this court’s actions strengthen the position that the State Board of Education, and not the Commission, acts in matters related to § 10-15c. Based on the above, the Motion to Dismiss is granted as to the Complainant’s claims pursuant to § 10-15c of the General Statutes.

Complainant also alleges violations of § 46a-64(a), Connecticut’s public accommodation statute. As discussed earlier, the Commission has jurisdiction over "discriminatory practices" as defined by § 46a-51(8), which includes a violation of

§ 46a-64. Section 46a-64(a)(1) provides:

Therefore, if public schools are public accommodations pursuant to this statute, as is argued by the Commission in its opposing memorandum, then the Commission may retain jurisdiction over this complaint.

A "place of accommodation, resort or amusement" is defined in General Statutes § 46a-63(1) to mean:

As this definition is not dispositive of the issue or even slightly enlightening, we must turn to the case law for guidance. Unfortunately, only one Connecticut case discussed infra has addressed the definition of public accommodation in connection with schools. The Commission contends that the superior court case, State of Connecticut, CHRO v. State of Connecticut, University of Connecticut, Docket No. CV 95 57527S, Judicial District of Tolland at Rockville, December 16, 1996 (Bishop, J.) holds that the University of Connecticut is a public accommodation (see Memorandum, pages 3 and 5). I disagree with the Commission’s interpretation.

The case mentioned above upholds the decision of a Commission hearing officer which ruled that cheerleading at the University of Connecticut was not a public accommodation, because the position is not offered to the general public. Id. at 24-25. The Court states "[t]he hearing officer found that the University of Connecticut may very well be a public accommodation, but the position of cheerleader is not. (emphasis added)" Id. at 24. "The court finds the hearing officer’s interpretation of the position of cheerleader persuasive. . . ." The court merely affirms the hearing officer’s ruling that the position of cheerleader is not a public accommodation, it does not state that the university, itself, is a public accommodation. Therefore, the decision provides little to no guidance to the discussion at hand.

In a review of all of the states that have addressed the issue of whether public schools are public accommodations, 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. See Carroll K. v. Fayette County Board of Education, 19 F.Sup.2d 618 (S.D.W.Va. 1998)(state statute defines place of public accommodation as a "political or civil subdivision" of the state); Clark County School District v. Buchanan, 112 Nev.1146, 924 P.2d 716 (1996) (state statute defines place of public accommodation to include any "place of education"); Pennsylvania Human Relations Commission v. School District of Philadelphia, 681 A.2d 1366 (1996) (state statute includes public schools in definition of "public accommodation"); and Hinfey v. Matawan Regional Bd. Of Ed, 77 N.J. 514, 391 A.2d 899 (1978) (state statute includes public schools within definition of a "place of public accommodation").

The other states that have addressed this issue do not define public accommodations to include public schools and thus have concluded that public schools are not public accommodations. In the federal court decision, Harless v. Darr, 937 F.Sup. 1351 (S.D.Ind. 1996), a student had sued his school district to challenge its policy regarding the distribution of literature under the federal public accommodation laws, Title II of the Civil Rights Act of 1964. 42 U.S.C. 2000a et seq. The court concluded that public schools are not public accommodations. Id. at 1354.

Public schools do not purport to be open to the general public in the ways that, for example, hotels, restaurants, and movie theaters (all establishments explicitly covered by Title II) do. Id.

Moreover, the facts in a Kansas case are almost identical to those in the present matter. In Kansas Commission on Civil Rights v. Topeka Unified School District

No. 501, 243 Kan. 137, 755 P.2d 539 (1988), the Kansas civil rights agency appealed a lower court decision holding that it had no jurisdiction under the state anti-discrimination statutes to investigate complaints of discrimination in public schools. The state anti-discrimination statutes granted specific powers to the Commission to "investigate complaints alleging discrimination in employment, public accommodations, and housing." Kansas Commission on Human Rights, supra, at 138. The complainants in the agency were five black students who were denied a transfer to another school because of its already high minority enrollment. They filed complaints with the civil rights agency alleging discrimination in a place of public accommodation, namely the public school. Id. at 138-39.

The court ruled that public schools are not places of public accommodation. Kansas Commission on Human Rights, supra, at 142. "Places of ‘public accommodation’ are those which are held out as open to the general public and which members of the public generally are invited to patronize and otherwise visit." Id. "If the legislature had intended the public schools to be included within the concept of ‘public accommodations,’ they would have specifically so stated." Id. at 143. The court reasoned:

Based on the above analysis, it is here determined that public schools are not public accommodations. Most convincing, is the fact that our statute, § 46a-63(1) of the General Statutes does not include public schools within its definition of public accommodation. "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). Additionally, public schools are not "open to the public" as a public library, restaurant, or other commercial establishment. Cheshire High School, in particular, is only open to students that live in the town of Cheshire within a certain age range, or other students specifically permitted by the town’s board of education. It is unlikely that any member of the public could walk in to the school at any time and sit in on a class or order lunch in the cafeteria—they would probably be quickly ushered out. Based on these circumstances, public schools are not public accommodations and therefore the allegations based on § 46a-64(a)(1) are dismissed.

The Respondents argue that discrimination claims against public schools are not within the jurisdiction of the Commission. The Commission counters that it has concurrent jurisdiction with the state Board of Education pursuant to § 46a-64(1) and (2), as well as § 46a-58(a). As claims pursuant to § 46a-64(1) have been dismissed, this section will review the allegations in the complaint pursuant to § 46a-64(a)(2) and § 46a-58(a). General Statutes § 46a-64(a)(2) provides:

Additionally, § 46a-58(a) states:

The issue is whether these two statutes, which each contain general prohibitions against all discrimination, and are both within the definition of "discriminatory practice" in § 46a-51(8), grant jurisdiction to the Commission over public schools as well as to the State Department of Education through § 10-15c. The Commission argues that it does, in fact, have concurrent jurisdiction because (1) the legislature has not specifically prescribed exclusive jurisdiction to either agency; and (2) the Commission has concurrent jurisdiction with federal agencies. I disagree.

Section 46a-64(a)(2) is confusing as it is written. While (a)(1) clearly sets forth that it applies to public accommodations, and all other subsections within § 46a-64 clearly set forth that they apply to public accommodations, subsection (a)(2) for some reason, omits the words "public accommodations." The question is whether this omission was intended to effect a general prohibition against discrimination, segregation and separation as to all persons and entities, and is consequently duplicative of the general prohibition in § 46a-58(a), or whether it was intended to apply solely to public accommodations.

In a review of the voluminous legislative history of the statute (which is too expansive to cite each and every reference over the course of 50 years), every reference to the section refers to it as the "public accommodations law." In 1953, however, Representative Schlossbach specifically referred to the segregation language within subsection (a)(2):

Therefore, although the wording is omitted from subsection (a)(2), it is here concluded that this subsection, as the title to the statute and all other subsections within § 46a-64 reveal, applies solely to public accommodations, and since it has been concluded that public schools are not public accommodations, it cannot be used by the Commission as a basis for concurrent jurisdiction with the Department of Education over discrimination in public schools.

Section 46a-58, however, forbids any person from discriminating against any other person. Section 46a-51(14) of the General Statutes defines "person" to include " . . . the state and all political subdivisions and agencies thereof (emphasis added)." Although boards of education may be interpreted to be political subdivisions of the state, I do not believe that the legislature, by enacting § 10-15c, intended for the Commission to also have jurisdiction over the same discrimination claims against public schools. It is the undersigned’s conclusion that the state legislature, through the enactment of § 10-15c, has specifically granted to the Department of Education, an agency possessing expertise and experience peculiar to the field of education, the authority and the procedure to address claims of discrimination in public schools. Because it did this with full knowledge of the existence of the Commission, it must have intended the state Department of Education to process such a narrow class of claims rather than have the jurisdiction of both agencies overlap. "It is well settled that where a statute specifically vests a designated agency with certain powers, other agencies whose powers flow from general enabling statutes must yield to the agency which is particularly vested with authority." Park Tower Associates v. City of New York, 116 Misc.2d 1059, 1060, 457 N.Y.S.2d 178, 179 (1982).

To rule otherwise would permit claimants to strategize which agency might be more favorable, quicker, and powerful, or essentially to "forum shop." Or, in the alternative, claimants could file claims with both agencies, thereby commencing two investigations, and then withdraw at their most opportune moments. As this matter involves claims of disparate disciplinary treatment and school policy, the Department of Education has the expertise and authority necessary to properly evaluate and possibly sanction and subsequently monitor public school respondents.

While there is no Connecticut case law with similar circumstances to this matter, or which rule on concurrent jurisdiction between two state agencies, the New Jersey case cited by the Commission, Hinfey v. Matawan Regional Bd. Of Ed, 77 N.J. 514, 391 A.2d 899 (1978), discussed supra, is persuasive. There, the state court did hold that there was concurrent jurisdiction on a similar discrimination claim between the state of New Jersey’s civil rights agency and its department of education, but ultimately ruled that all such cases, even if commenced in the civil rights agency, must be transferred to the department of education.

Therefore, based on the above, it is concluded that § 46a-58(a) and § 46a-64(a)(2) do not provide a basis for concurrent jurisdiction between the Commission and the Department of Education over discrimination claims against public schools and therefore the Motion to Dismiss is granted as to the Complainant’s claims pursuant to §§ 46a-64 and 46a-58 of the General Statutes.

Conclusion

For the foregoing reasons, the Respondents’ Motion to Dismiss is granted in part and denied in part. The Motion to Dismiss is granted as to §§ 10-15c, 46a-58 and 46a-64. The Motion to Dismiss is denied as to § 46a-75 as neither party has briefed or even mentioned its existence.

It is so ordered this 15^th day of July, 1999, at Hartford, Connecticut.

__________________________

Hon. Lisa B. Giliberto
Presiding Human Rights Referee