<em>In the Matter of Jane Doe v. Margarita Rosa as Commissioner of the Division of Human Rights of the State of New York, and State University at Buffalo</em>, Supreme Court of the State of New York index No. 22487/92

Circles: Buffalo Women's Journal of Law and Social Policy Circles: Buffalo Women's Journal of Law and Social Policy

1-1-1995

Article 22

In the Matter of Jane Doe v. Margarita Rosa as Commissioner of

the Division of Human Rights of the State of New York, and State

, Supreme Court of the State of New York University at Buffalo, Supreme Court of the State of New York

index No. 22487/92 index No. 22487/92

Marianne Mariano

discriminatory in its employment policies, that the University's provision of placement services to the

military was a provision of "services and benefits" by a state agency under the Executive Order, and that neither state nor federal law required an exception be made for a discriminatory military recruiter. The

Commissioner's reversal of this determination, the grounds for the petition, encompassed only the last

portion of the finding.

The Respondent argued that state law required an exception to be made for a discriminatory

military recruiter. The Commissioner asserted that under section 2-a of the Education Law the military must be permitted access to the University. The law provided that if an officer of any institution belonging to the University of the State of New York permits access to school property to persons who inform students about career opportunities, then such official should provide access on the same basis to representatives of the state militia and the armed forces of the United States. The Court concluded that a

plain reading of section 2-a of the Education Law allows the application of a uniform anti-discrimination

policy by the institution of the University of the State of New York. Although the Court acknowledged the Respondent's argument that the legislative comments regarding section 2-a were indicative of an intention to give preferential treatment to military recruiters, the Court found other legislative material

indicating an intention to give evenhanded treatment of all employers more persuasive. The Court

concluded that the Commissioner was in error when she determined that section 2-a of the Education Law would be violated if military recruiters were not permitted access to school facilities.

The Respondent also argued that federal law required exception to be made for discriminatory

military recruiters. The Commissioner's finding was based on the fact that the military policy of exclusion was lawful under federal law and that an Executive order could not prohibit "lawful" discrimination. The

Court was not persuaded by this argument and concluded that the focus of the Commissioner should have been upon the University's compliance with the Executive Order. The Court went on to hold that the mere fact the military's practice of discriminating on the basis of sexual orientation is permissible under

federal law does not preclude the executive branch from limiting recruitment speech. The Court went on to state that every court called upon to consider the issue has held that law schools are under no duty to cooperate with military recruiters.

The University, added as a party in an interim order, argued that the application of the Executive

Order to military recruiters would jeopardize certain military grants unless the military were to certify to an exemption. The Court was again not persuaded by this argument holding that a claim of prejudice was irrelevant to a determination of whether the law school is required to comply with the Executive Order.

The court stated further that other law schools within New York State bar or limit military recruiters and that the law school at Buffalo would not be placed in any worse position than the majority of law schools

within New York State.

In the final portion of the opinion, the Court addressed the issue of mootness, finding that the

enforcement of the Executive Order continued to be a legally viable issue regardless of the new policy that requires military recruiters to eliminate certain questions about sexual orientation.

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CIRCLES 1995 Vol. III