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The Urban-Suburban Interdistrict Transfer Program has been in the news quite a bit lately, as several suburban Monroe County school districts consider whether to join the Program, which permits minority students from the Rochester City School District to transfer to suburban school districts. This evening the Spencerport Central School District voted to become the eighth suburban district to join the program. According to the Democrat and Chronicle, at least three more suburban districts are considering whether to join as well.
One of the most rewarding cases I worked on early in my career was Brewer v. West Irondequoit Central School District, 212 F.3d 738 (2d Cir. 2000), a case upholding the Urban-Suburban Interdistrict Transfer Program. This evening, I dusted off my copy of our brief, and flipped through the pages of the Joint Appendix. Here are some interesting facts from the case as they existed at the time of the appeal:
- The Program began in 1965, with the voluntary transfer of 25 minority students from a predominantly minority Rochester City School District school to the predominately white West Irondequoit Central School District.
- Program participating involved a voluntary commitment by each suburban district, and the decision-making process was typically accompanied by vigorous political debate, and the public airing of racial attitudes and prejudices.
- The Program survived an early legal challenge in Etter v. Littwitz, 47 Misc. 2d 473 (Sup. Court Monroe County 1965), aff’d, 28 A.D.2d 825 (4th Dep’t 1966), as well as funding cuts and recurring political opposition to its state funding.
- Over time, the Program expanded to include more transferring students and additional participating suburban school districts. At the time of the appeal, six suburban districts participated in the Program: Brockport, Penfield, Brighton, Pittsford, Wheatland-Chili, and West Irondequoit. Subsequently, Fairport joined the Program, and as noted above, Spencerport has decided to join.
- The Program operates and is funded pursuant to State legislative and State Education Department authorization. This was true at the time of our appeal, and I believe it to be true today.
- Program literature and historical news accounts in the record report that the Program was the first such voluntary inter-district desegregation effort in the United States.
- At the time of our appeal, the Program was the only one of its kind in New York State.
- The Program was not established, nor was it administered to permit a select group of students to attend a “better school” based on their superior academic achievement or intelligence. Rather, the goal and purpose of the Program as specified by the State Education Department was “to promote a reduction in racial isolation in the elementary and secondary schools of the State.”
- Although the “outbound” component of the Program generates the most press, at the time of our appeal there was also an “inbound” component to the Program, whereby non-minority students may transfer from participating suburban districts to attend school in Rochester. According to information in the record, approximately 29 suburban students transferred inbound to attend a Rochester City School District school for the 1996-97 school year, and 50 students did so for the 1998-99 school year.
- During the then-30 years of its existence, the Program received high praise and commendations from numerous people, including a sitting U.S. President, federal and state legislators, members of the New York Board of Regents and State Education Department officials, local school superintendents and administrators, teachers, parents, and students.
- In celebration of the Program’s 20th Anniversary, President Ronald Reagan congratulated the Program, noting:
For two decades your voluntary program has provided an opportunity for thousands of students to learn and grow in a multi-cultural environment. It has broadened their horizons and promoted high student achievement and academic excellence.
-President Ronald Reagan, February 24, 1986 (Joint Appendix on Appeal at A-152).
In upholding the Program, the Second Circuit held “that a compelling interest can be found in a program that has as its object the reduction of racial isolation and what appears to be de facto segregation.” Brewer, 212 F.3d at 752.
As these young children from Rochester begin their education in Spencerport (and any other district joining the Program), I hope that they will be welcomed by their new peers–including many whose parents may have been opposed to joining the Program. Although society continues to struggle with whether or not voluntary desegregation programs like this are constitutionally permissible, many people believe that all of these children–whether from the suburbs or the city–will benefit from interactions with other children from different backgrounds.
The human resources manager for the defendant in the recent Texas Court of Appeals case of A&L Industrial Services, Inc. v. Oatis, apparently never took this course. Largely because of his actions, the plaintiffs—former employees who were terminated—were able to convince a jury not only that they were retaliated against for complaining about discrimination, but also that they were entitled to punitive damages. What is somewhat surprising is that the appellate court upheld these findings in spite of the fact that the plaintiffs failed to prove their underlying discrimination claim.
To find out what happened, click here, and you will be taken to my post on our firm’s website.
As Senate Debates ENDA, New York’s Sexual Orientation Non-Discrimination Act Celebrates its 10th Year
On the drive home this evening, NPR reported that the U.S. Senate had just voted to move forward with debate on the Employment Non-Discrimination Act, which would expand the protections afforded under Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation or gender identity. Although the bill faces an uncertain future in the House (it was reported that the Speaker came out against consideration of the bill), many states already have laws prohibiting discrimination against LGBT people. But many do not.
New York is one of the states that enacted such protections. The New York Sexual Orientation Non-Discrimination Act (“SONDA”) was signed into law by Governor George Pataki on December 17, 2002, and the law became effective on January 16, 2003. An easy-reader summary of SONDA and its protections may be found in a brochure on the New York State Attorney General’s Website. Additional information may be found on the website for the New York State Division of Human Rights.
Although part of my practice involves representation of both employers and employees in discrimination cases, in the decade since the SONDA was enacted, I can count the number of cases I’ve handled involving an allegation of discrimination based on sexual orientation on one hand. By far, the vast majority of cases I’ve handled over the years have involved allegations of discrimination or harassment based on race, gender or disability. But, that doesn’t mean that statutes like SONDA are not needed, and in time, we may soon see a day when the protections of the ENDA are the law of the land.