| Matter of Newfield Cent. School Dist. v New York State Div. of HumanRights |
| 2009 NY Slip Op 07731 [66 AD3d 1314] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of Newfield Central School District, Respondent, vNew York State Division of Human Rights, Appellant. |
—[*1] Sayles & Evans, Elmira (James F. Young of counsel), for respondent. Lambda Legal Defense and Education Fund, New York City (Michael D.B. Kavey ofcounsel), for Advocates for Children of New York, Inc. and others, amici curiae.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Mulvey, J.), entered July 24,2008 in Tompkins County, which granted petitioner's application, in a proceeding pursuant toCPLR article 78, to prohibit respondent from investigating discrimination complaints againstpetitioner.
Respondent, the State Division of Human Rights (hereinafter SDHR), received separatecomplaints from the parents of two male students that attend school within petitioner, theNewfield Central School District, to the effect that their sons had been the victims of genderdiscrimination in the way the School District had disciplined them for their involvement in analtercation that had taken place on a school bus.[FN1]SDHR undertook an investigation of each complaint and requested certain information from theSchool District. When the School District refused to cooperate and challenged SDHR's authorityto undertake such an inquiry, SDHR [*2]proceeded with itsinvestigations and conducted administrative proceedings in the School District's absence.Ultimately, SDHR issued an initial determination on each complaint that it had jurisdiction toconduct the investigations and that probable cause existed to believe that an unlawfuldiscriminatory practice had occurred in violation of the Human Rights Law (seeExecutive Law § 297 [2] [a]). In response, the School District commenced this CPLRarticle 78 proceeding alleging that SDHR did not have jurisdiction to investigate claims againstit pursuant to Executive Law § 296 (4) because a public school district is not an"education corporation or association" as contemplated by that statute, and sought a writ ofprohibition preventing SDHR from proceeding with hearings on either of the complaints.Supreme Court ultimately concluded that SDHR had no jurisdiction to hear discriminationclaims involving conduct that occurred within the School District and granted the petition.SDHR appeals.
We reverse. "The extraordinary writ of prohibition may be maintained solely to prevent abody or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening toproceed without, or in excess of, its jurisdiction" (Matter of Pat's Carpet Outlet v State ofN.Y. Exec. Dept., Div. of Human Rights, 244 AD2d 338, 339 [1997] [citation omitted]), andis not available where other adequate legal remedies are available (see Matter of Town ofHuntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993];Randy—The Salon v New York State Div. of Human Rights, 201 AD2d 901, 901[1994]). The Court of Appeals has held that a writ of prohibition is not an appropriate vehicle tobe used to bar SDHR from conducting an investigation because the "[r]emedy for asserted errorof law in the exercise of [SDHR's] jurisdiction or authority lies first in administrative review andfollowing exhaustion of that remedy in subsequent judicial review pursuant to section 298 of theExecutive Law" (Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d789, 791 [1979]; see Matter of Ken Edrich Leather Accessories v New York State Div. ofHuman Rights, 269 AD2d 334, 335 [2000]). Moreover, a challenge to a nonfinal order ofSDHR is not available unless there is a showing of "futility of the administrative remedy;irreparable harm in the absence of prompt judicial intervention; or a claim of unconstitutionalaction" (Matter of Bettina Equities Co.LLC v State of N.Y. Exec. Dept., State Div. of Human Rights, 9 AD3d 296, 296[2004]).
Here, the School District has not exhausted its administrative remedies in that the hearingprocess has not been completed (see 9 NYCRR 465.17; Matter of Ken EdrichLeather Accessories v New York State Div. of Human Rights, 269 AD2d at 335). In thecontext of that administrative proceeding, the School District can assert its challenge to theapplicability of Executive Law § 296 (4) to public school districts and, at the same time,mount a defense to the charges of discrimination against it. Once a final determination has beenissued, the School District, if necessary, has the opportunity to raise these issues in a challenge toSDHR's final determination (see Executive Law § 298; Matter of TessyPlastics Corp. v State Div. of Human Rights, 47 NY2d at 791). In addition, it is by no meanscertain at this point in these proceedings that SDHR will not find for the School District as to thecharges of discrimination levied against it or that requiring a complete exhaustion of itsadministrative remedies before SDHR would be a futile exercise.[FN2]Moreover, the School District has not shown that it will suffer irreparable harm [*3]by proceeding with the hearings prior to a judicial determination asto SDHR's jurisdiction to investigate and adjudicate these complaints (see Matter of Dioceseof Rochester v New York State Div. of Human Rights, 305 AD2d 1000, 1001 [2003]).Therefore, we find no reason to depart with the traditional rules that require a petitioner toexhaust all available administrative remedies before mounting a challenge to a final order fromwhich it is aggrieved.
Nor do we agree with the School District that hearings on these complaints, if fairlyconducted, would necessarily require the disclosure of student records in violation of the FamilyEducational Rights and Privacy Act (see 20 USC § 1232g [a] [4] [A] [hereinafterFERPA]). FERPA prohibits public school districts from releasing or disclosing records ofstudents unless written consent is obtained from an appropriate parent or guardian, or a judicialorder is issued mandating their disclosure (see 20 USC § 1232g [b] [2] [A], [B]).Given that it is entirely unclear from the present state of the record that a hearing on thesecomplaints would require such disclosure, or that a statutory exception to the bar contained inFERPA might otherwise apply, a decision on this issue is not, at this time, ripe for review(see 20 USC § 1232g [b] [1] [J] [ii]; [2]; Matter of Hampton Bays Union Free School Dist. v Public Empl. RelationsBd., 62 AD3d 1066, 1069 [2009]).
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Ordered that the judgment is reversed,on the law, without costs, and petition dismissed.
Footnote 1: The boys were alleged to haveharassed and assaulted a bus driver.
Footnote 2: To this extent, we note thatsince SDHR made its initial determination that it had jurisdiction to hear these two complaints,the Second Department issued a decision in which it concluded that Executive Law § 296(4) did not apply to public school districts (see Matter of East Meadow Union Free School Dist. v New York State Div.of Human Rights, 65 AD3d 1342 [2009]). It is unclear whether, as a result of thatdecision, SDHR will take a different position on this issue in the context of the instantproceeding, which further supports the conclusion that the need for the School District to exhaustits administrative remedies is not futile. We note that it is significant that the petitioner inMatter of East Meadow Union Free School Dist. did not seek to appeal from aninterlocutory decision of SDHR—as is the case herein—but rather commenced anExecutive Law § 298 proceeding challenging a final determination of SDHR (id.).