Major Changes in the Empire State

Posted by MK on Jul 9, 2012 @ 2:07 pm

Those who know what I’ve been thinking and writing about recently won’t be surprised that this first blog post is about New York law. The state’s public school students got some terrible news last month from the New York Court of Appeals (the state’s highest court). But fortunately, there’s some good news to report now too.

I wrote at length about the bad news several weeks ago on the Gender & Sexuality Law Blog at Columbia Law School. Here’s an excerpt with the key points:

In a devastating ruling for millions of young people in New York, the state’s highest court has held that the antidiscrimination and antiharassment protections for students under the New York Human Rights Law (HRL) extend exclusively to students in private—not public—schools. The decision converts HRL Section 296(4)—one of the broadest, most inclusive, and most powerful state-level student-civil-rights measures in the nation—into a legal remedy available only to a narrow class of privileged individuals; namely, those who can afford private education. The ruling marks a painful setback for civil rights in New York, particularly for the rights of lesbian, gay and bisexual (LGB) youth; this is because HRL Section 296(4) is the only civil rights measure under New York or federal law to specifically authorize students to file suit when school officials permit harassment based on sexual orientation. The court’s decision also contributes to racial and economic injustice, in that public school students, who are more likely to be racial minorities and more likely to come from lower-income families than their private-school counterparts, can no longer access the uniquely affordable procedures and resources available to those who file HRL discrimination complaints with the State Division of Human Rights.

Pretty bad, right? (For more on this unfortunate development, see this piece by two Lambda Legal attorneys in the New York Law Journal, as well as some analysis from my former co-clerk, David Ziff, on his blog.)

The good news is that an entirely different state law protecting public schools from discrimination and harassment, including discrimination and harassment based on sexual orientation and gender identity, has now taken effect. The new law doesn’t undo any part of the ruling I’ve criticized above, but it does give some reason to celebrate.

Today, I’ve published a short piece on-line about the new law and how it relates to the court ruling last month. I co-authored the piece with Hayley Gorengberg, the Deputy Legal Director of Lambda Legal, who is also my former supervisor there. Here’s a teaser:

Two near-simultaneous developments have left many people understandably confused about whether students in New York are protected from harassment and discrimination based on sexual orientation and gender identity. First, New York’s highest court held that student safeguards under the state Human Rights Law apply only in some private—and not in any public—schools. Then on July 1, after over a decade of advocacy, the Dignity for All Students Act (DASA) finally took effect, providing new anti-harassment protections to public school students.

Here we offer thoughts on what has changed and what more must be done to achieve safe school environments for all students in the state and around the country.

I encourage folks to check out the full post, which appears on Lambda Legal’s Blog, and which should appear on the Huffington Post too, either later today or tomorrow. [Update: The Huffington Post link is here.]

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