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Students, parents, and employees have a variety of methods by which they may challenge a school district’s actions or response to allegations of discrimination, harassment, bullying, retaliation or the like.

One lesser-known method is to file a complaint with the New York State Division of Human Rights.

In 2019, the New York State legislature amended the New York State Human Rights Law to specifically prohibit discrimination in public schools. As a result, students and employees may file complaints alleging discrimination based on any protected characteristic (including age, disability, gender identity or expression, marital status, military status, national origin, race/color, religion, retaliation, sex or sexual orientation) with the Division of Human Rights.

Prior to this amendment, public schools were not considered “educational institutions” as that term is defined under the law and the division had no authority to investigate claims of discrimination in public schools. Since that time, the division has published guidance for schools on such topics as gender identity discrimination (see on.ny.gov/44tB7lV).

If a district receives notification of a complaint from the division, the district should immediately inform its attorney and its insurance company, as many school districts have insurance that will cover the costs associated with defending the complaint. The district should immediately take action to investigate and address the alleged discrimination and/or harassment. This could involve alleged sexual harassment of a student or employee by another student, an employee or other person.

In recent months, our office has seen an uptick in complaints filed on behalf of students with the division, many of which have included allegations of race and/or gender identity discrimination.

The district must submit a written response to a complaint within 15 days of the date that the division sent the complaint. Generally, one reasonable extent will be granted upon request. Even so, the district must act quickly because it does not have much time to respond.

Usually, the school district’s attorney prepares this written response with the assistance of district officials. Regardless of who authors the response, it is extremely important for the district to tell its side of the story and provide a response to each of the specific allegations in the complaint. The response, called a “position statement,” should clearly explain the sequence of events as understood by the district and reference relevant documentary evidence to support the district’s position.

Once the position statement is submitted, the complainant may submit what is known as a “rebuttal.” The division may then request additional information from the district. Another investigative tool the division frequently uses is a fact-finding conference. During such a conference, both parties are present and the division’s assigned investigator asks questions of both parties.

Following the investigation, the division will issue a determination. It will either determine that there is “probable cause” to believe that discrimination and/or harassment occurred or “no probable cause” to believe that discrimination and/ or harassment occurred. If there are any questions of material fact, which there frequently are, the division will issue a probable cause determination.

If the division finds probable cause, a hearing will be scheduled before an administrative law judge to consider all relevant evidence and witness testimony. The division will select the hearing dates unilaterally, which may be more than a year after the determination was issued given the division’s current backlog of cases.

After the hearing, the administrative law judge assigned to the case will issue a recommended order advising the parties and the state Commissioner on Human Rights (currently Maria L. Imperial) how he or she believes the case should be resolved. The commissioner will review the allegations, the evidence and the administrative law judge’s recommended order then issue a final commissioner’s order.

If the commissioner’s order is in favor of the complainant, the order will specify a remedy such as a change in policies and/or practices, reinstatement to a job, back pay, equal treatment in an accommodation, institution, or program, and/or compensation for emotional distress.

Notably, the parties can negotiate a settlement of the claims prior to or even during the hearing process. The final resolution, however, must be approved by the division.

Luisa D. Bostick and Lindsay A.Menasco, Hodgson Russ, LLP

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