STATE OF NEW YORK : EXECUTIVE DEPARTMENT STATE DIVISION OF HUMAN RIGHTS --------------------------------------x STATE DIVISION OF HUMAN RIGHTS : : On the Complaint of : : JANE DOE : COMPLAINT No.: 90-09 : Complainant, : : -against- : : STATE UNIVERSITY OF NEW YORK : AT BUFFALO : : Respondent. : --------------------------------------x BRIEF IN SUPPORT OF COMPLAINANT JANE DOE Evan Wolfson Lambda Legal Defense & Education Fund, Inc. 666 Broadway, 12th Floor New York, NY 10012 212-995-8986 Counsel of Record Timothy W. Reinig Robinson, Silverman, Pearce, Aronson & Berman 1290 Avenue of the Americas New York, NY 10104 212-541-2000 Cooperating Attorney for Lambda Attorneys for Complainant TABLE OF CONTENTS PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 1 FACTS AND PRIOR PROCEEDINGS. . . . . . . . . . . . . . . . . . . . . . . 2 POINT I NEITHER FEDERAL NOR STATE LAW PREEMPTS THE ORDER DIRECTING RESPONDENT TO COMPLY WITH E.O. 28.1. MOREOVER, NOTHING IN FEDERAL OR STATE LAW PREVENTS RESPONDENT FROM IMPLEMENTING THIS STATE'S POLICY OF NON-DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION. . . . . 4 POINT II THE ORDER DOES NOT PURPORT TO DIRECT THE MILITARY TO DO ANYTHING, NOR DOES IT SEEK TO APPLY E.O. 28.1. TO THE MILITARY'S DISCRIMINATORY POLICIES. AS A STATE AGENCY, RESPONDENT IS THE ONLY PARTY SUBJECT TO THE ORDER, WHICH REQUIRES RESPONDENT TO COMPLY WITH INTERNAL STATE POLICY.. . . . . . . . . . . . . . . . . . . . . . . . . . . 13 POINT III BY FAILING TO ENSURE THAT GAY AND LESBIAN STUDENTS ARE PROVIDED EQUAL, NON-DISCRIMINATORY SERVICES AND BENEFITS THROUGH ITS CAREER DEVELOPMENT AND PLACEMENT OFFICE, RESPONDENT VIOLATED E.O. 28.1. . . . . . . . . . . . . 17 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 STATE OF NEW YORK : EXECUTIVE DEPARTMENT STATE DIVISION OF HUMAN RIGHTS --------------------------------------x STATE DIVISION OF HUMAN RIGHTS : : On the Complaint of : : JANE DOE : COMPLAINT No.: 90-09 : Complainant, : : -against- : : STATE UNIVERSITY OF NEW YORK : AT BUFFALO : : Respondent. : --------------------------------------x BRIEF IN SUPPORT OF COMPLAINANT JANE DOE Preliminary Statement Jane Doe ("Complainant") submits this Brief in Support of Complainant pursuant to the "Policies and Procedures for Prevention of Discrimination in Employment or in the Provision of Services by New York State on the Basis of Sexual Orientation" of the State Division of Human Rights. This Brief is in opposition to the State University of New York at Buffalo's Brief On Behalf of Respondent, appealing to the Commissioner of the Division of Human Rights from a determination and order of the Acting Director of the Division's Office of Gay and Lesbian Concerns (the "Office") dated September 19, 1991. Facts and Prior Proceedings The State University of New York at Buffalo ("Respondent") operates a Career Development Office ("CDO") as one of its facilities providing services to students and employers at the law school. These services include seeking out and bringing in potential employers to the University, arranging for students to meet and interview with those prospective employers, maintaining listings of job opportunities, counseling students on job options and strategies, job placement, and otherwise offering students a range of services and benefits essential to their career development. The CDO expends state funds and resources to assist employers in culling resumes and facilitating interviews, reserving rooms on campus, copying and circulating employer recruitment materials, and counseling. The services provided to the students and employers by the CDO are the equivalent of those offered by a traditional employment agency. On October 10, 1990, Complainant filed a verified complaint (the "Complaint") with the Office under Governor Cuomo's Executive Order 28.1 ("E.O. 28.1"), which prohibits state agencies from discriminating on the basis of sexual orientation in employment or the provision of agency services or benefits. A copy of the Complaint was served on Respondent on January 25, 1991. The Complaint stated that Respondent had violated E.O. 28.1 by permitting a concededly discriminatory employer, the Judge Advocate General's Corps (the "JAG Corps"), to use the facilities of, and recruit potential employees through, Respondent's law school career development and placement office. By providing the JAG Corps free rein to use the CDO while discriminating against students in recruitment, interviewing, and hiring, the CDO clearly was not providing lesbian and gay students equal services and benefits, as required by E.O. 28.1. On September 19, 1991, the Office, through its Acting Director, issued a determination that Respondent had, in fact, violated E.O. 28.1. The Office found that, notwithstanding Respondent's obligation to refrain from discrimination "in the provision of any services or benefits," Respondent had allowed the JAG Corps to recruit through and make use of the facilities and resources of, Respondent's CDO. Respondent thus failed to provide lesbian and gay law students equal services and benefits free from discrimination on the basis of sexual orientation. The Office ordered Respondent to cease and desist from such discrimination ("the Order"). On September 30, 1991, Respondent filed a Notice of Appeal with the Commissioner of Human Rights appealing from the Order. Complainant submits this Brief in opposition to Respondent's appeal, and for a determination affirming and enforcing the Order. POINT I NEITHER FEDERAL NOR STATE LAW PREEMPTS THE ORDER DIRECTING RESPONDENT TO COMPLY WITH E.O. 28.1. MOREOVER, NOTHING IN FEDERAL OR STATE LAW PREVENTS RESPONDENT FROM IMPLEMENTING THIS STATE'S POLICY OF NON-DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION. In issuing Executive Order 28.1 and its precursor, Executive Order 28, Governor Cuomo warned of the threat posed when any agency or branch of the government tolerates discrimination, including discrimination based on sexual orientation. He said, "[O]nly by protecting the freedom of others can we ensure it for ourselves." Executive Order 28. The Governor noted his own firsthand experience in combatting sexual orientation discrimination as Secretary of State, and declared, "[T]here is no justification for the failure to announce freedom from discrimination as the policy...of this entire State government." Id. Governor Cuomo directed that, "No State agency or department shall discriminate on the basis of sexual orientation against any individual in the provision of any services or benefits by such State agency or department." Id. His order applies to the state university system which, as Governor, he heads, just as it applies to every state officer and employee. In implementing E.O. 28.1, the Division of Human Rights promulgated policies and procedures for the prevention of discrimination in the provision of services by New York State. In those policies, the Division defined as discrimination, "[a]ny conduct which has the purpose or effect of making sexual orientation the basis for granting or denying services, or for an employment decision[.]" New York State Register, March 2, 1988. The Governor's intent was to commit his full power as Chief Executive of New York State to ensuring that all state agencies and departments, including the state university system, refrain from sexual orientation discrimination in their exercise of state functions such as employment and the provision of all services and benefits. What has happened in this case is that certain state agents, Respondent administrators of SUNY/Buffalo, have decided that they do not wish to comply with the Governor's directive to them that all state agencies and departments refrain from discriminating. To make this argument, they claim that federal and state law prevent the Governor, who heads their institution, from making an internal policy determination that that institution will not discriminate. While they may be entitled to attempt to persuade the Governor to carve out a special exemption licensing them to discriminate, Respondent administrators ought not to be permitted to characterize the issue as one of preemption. A. The Alleged Federal Preemption In its brief on appeal, Respondent brings nothing new to these proceedings. Rather, Respondent merely reiterates and repeats its prior arguments without benefit of additional persuasive authority or support. Again, Respondent attempts to characterize E.O. 28.1 as conflicting with Congressional legislation authorizing military recruiting, citing as its authority 10 U.S.C.  503 (a). Respondent insists that the Office's application of E.O. 28.1 to a state university career development and placement office is in conflict "with the clear Congressional policy of encouraging universities to allow military recruitment on campus." Respondent's Brief at 4. In support of this contention, Respondent seeks to make much of the holding in United States v. City of Philadelphia, 798 F.2d 81 (3rd Cir. 1986). In City of Philadelphia, two Temple University law students, after they had sought interviews with the JAG Corps, complained to the City of Philadelphia that the military recruiters were in violation of a city ordinance prohibiting employment discrimination on the basis of sexual orientation. 798 F.2d at 84. When the City subsequently sought to enforce its ordinance, both Temple University and the military claimed that the ordinance was unenforceable against them on the grounds of federal supremacy over state and city law. Id. The court agreed that the City could not force a private university to bar federal agents against its will, because of the doctrine of federal supremacy. Id. at 88-89. That doctrine is not at issue in this case. City of Philadelphia concerned the enforcement of a municipal ordinance against third parties, i.e., Temple University and the military. However, in this case, Respondent is not a third party, but a state agency subject to E.O. 28.1, as is every other state agency. Respondent has admitted as much. This concession alone ought to be enough to put an end to Respondent's insubordinate challenge to the Governor's directive. As an internal matter, Respondent has been told by its head, as have all New York State agencies, that it is not to engage in sexual orientation discrimination. This is quite different, and obviously distinguishable, from the posture of the university in City of Philadelphia being obliged by an external force, the city government, to implement a policy that prevented it from doing what it wanted to with respect to the federal government. Respondent also seeks to use City of Philadelphia as authority for its assertion that it is somehow "mandated" by federal law to allow the JAG Corps to recruit at its CDO. See Respondent's Brief, at 6. However, unfortunately for Respondent's argument, the court in City of Philadelphia explicitly recognized a university's "absolute right" to exclude military recruiters: [E]ach college and university retained the "absolute right to determine whether it desires to have any association with the military forces of its country, and this includes the right to determine whether it desires to permit military recruiters ... on its campus[.]" 798 F.2d at 88 (quoting H.R. Rep. No. 92-1149, at 79-80). Furthermore, federal regulations are absolutely clear on this matter as well. For example, 32 CFR  216.3 (a) provides that Department of Defense funds may not be used at any institution of higher learning if recruiting personnel are barred from the premises of the institution. The regulation thus on its face recognizes that institutions may choose to bar recruiters and have the absolute right to do so, albeit with a possible response from the federal government. Contrary to Respondent's specious assertion, then, the regulation does not prohibit universities from barring military recruiters but, as the Office in its determination noted, "simply means that the Federal Government can withdraw Department of Defense funds[.]" See Order at 7; 32 CFR  216.3 (a). Indeed, not only is there no federal "mandate" forcing schools to accept the military over their objections, but in fact research has shown no case in which funds were ever withheld from an institution that chose to exclude the military, as some have. Simply put, federal law leaves the decision up to each institution. For the state university system of New York, the institutional decision has been made, as is appropriate, at the top. Services and benefits are to be provided free of discrimination. Respondent administrators, like all other state agents, are bound to follow that policy. B. The Alleged State Preemption Respondent on appeal also continues to insist that, in addition to federal law, "State law preemptively controls the issue of recruitment by the military." Respondent's Brief, at 6. As authority, Respondent again tries to rely on Section 2-a of the New York State Education Law. However, Section 2-a clearly provides that access to educational institutions for recruitment activities must be provided "on the same basis" for the armed services as for all other recruiters. Indeed, Respondent itself begins its discussion of  2-a with the observation that "Section 2-a ... requires that access ... must be provided on the same basis for the armed services as for all other recruiters[.]" Respondent's Brief at 6 (emphasis added). A plain reading of the statute is that the military must be provided the "same access" to the CDO's services and facilities as is provided to all other recruiters. That access is on terms of non-discrimination, as established for the state university system and all state agencies by E.O. 28.1. As  2-a demands, the JAG corps has access to the CDO to the same extent and on the same terms as all other employers; the non-discrimination policy of the state university does not target the military specifically, but rather governs the use of the facilities by all employers equally. The legislative history cited by Respondent in support of its argument does not alter one iota the evident meaning of the central criterion of  2-a. The law itself uses the phrase "on the same basis." Overall, the legislative history cited by Respondent says that "the military should be allowed the same accessibility as other government agencies and private corporations ..." See Bill Jacket, L.1984, c. 786, p. 10 (emphasis added). Respondent seeks to divine in this legislative history some legislative intent at odds with the plain meaning of the statute. However, it is pure fantasy for Respondent to read into the legislative history a distinction between  2-a's "same basis" standard and the legislative history's usage of the phrase "same accessibility." It is a semantic distinction without substance and an argument without merit. Same does not mean more, special, or less; it means same. Respondent's Brief itself cites the true purpose of the legislation: What this bill is designed to do is to say if you are a recruiter for the United States Military forces, that you are a first-class citizen, and that a campus cannot deny you access on the basis, solely, of the fact that you are a military recruiter. Id. at 8 (quoting Assemblyman Flanagan). The legislation sought to assure that no special prohibition be placed on military recruiting, and of course none was in this case. Neither the law nor the legislative history reveals any legislative decision to give the military absolute, superior, or unqualified access. Instead, the legislature carefully established that where an employer is permitted to make use of university facilities on certain terms, the military has to be offered equal use of facilities on equal terms. As the Office noted in its determination, "the result of the co-existence of State Education Law and E.O. 28.1 is that [JAG Corps] would continue to be allowed on campus to recruit under State law, but only if it complied with the non-discrimination guidelines of E.O. 28.1." Order at 7. Since the enforcement of E.O. 28.1 against Respondent would result in a policy that applies equally to the military as well as all other recruiters, it is neither in conflict with, nor preempted by,  2-a. POINT II THE ORDER DOES NOT PURPORT TO DIRECT THE MILITARY TO DO ANYTHING, NOR DOES IT SEEK TO APPLY E.O. 28.1. TO THE MILITARY'S DISCRIMINATORY POLICIES. AS A STATE AGENCY, RESPONDENT IS THE ONLY PARTY SUBJECT TO THE ORDER, WHICH REQUIRES RESPONDENT TO COMPLY WITH INTERNAL STATE POLICY. Neither the Complaint nor the Order in this case apply to the military; neither sought to. For the purposes of this case, the military remains free to make its own decisions about whether or not to discriminate against Americans seeking to serve their country. The Order simply reminds Respondent administrators that they, like all other state agents, are bound by the Governor's prohibition on discrimination in the provision of state services and benefits. Respondent has been told that, pursuant to this State's -- and thus the state university's -- policy, it must deny discriminatory employers, including the military, the use of state resources and funds. What those employers or the military choose to do is up to them; E.O. 28.1 and the Order govern Respondent, not the military. Respondent nevertheless again asserts that "the Office has in effect erroneously applied [E.O. 28.1] to the lawful actions of the military." Respondent's Brief at 10. From the inception of this case, Respondent has continually attempted to indirectly implead both the JAG Corps and the military's regulations respecting gay and lesbian persons as "shadow defendants." However, neither the JAG Corps nor the military's stated policies are the subject of either E.O. 28.1, its enforcement, the Complaint, or these proceedings. Despite Respondent's persistent mischaracterization, the Order does not purport to address a "non-State entity." See Respondent's Brief at 10. There are no other entities subject to this action except Respondent, which has conceded that it is bound by the requirements of E.O. 28.1. In support of its mischaracterization, Respondent revisits the facts and holding in Under 21 v. City of New York, 65 N.Y.2d 344 (1985). In Under 21, the mayor of the City of New York issued an executive order that attempted to force parties contracting with the City to refrain from engaging in employment discrimination on the basis of sexual orientation. 65 N.Y.2d at 353. Specific language implementing the executive order was to be inserted into every contract with the City. Id. After several contracting parties challenged the order, the Court of Appeals found that the mayor had exceeded his authority in an attempt to legislate against contractors through the vehicle of an executive order. Id. at 364. Under 21 is clearly distinguishable from the instant case. In Under 21, the mayor's executive order at issue was directed to third parties contracting with City agencies, and not to the City agencies themselves. The mayoral attempt to legislate the conduct of external parties violated the separation of powers. The mayor had no authority to tell contractors what to do. By stark contrast, the present case involves the internal applicability of a state's executive order to its state agencies, not to third parties. Unlike the mayor's order in Under 21, E.O. 28.1 does not require potential employers to change their practices one jot; it simply requires that state agencies not expend state resources or services to assist those practices, here as they affect state university students. As shown in Point I, there can be no serious question that the university may exclude employers who discriminate. E.O. 28.1 simply informs the state university's exercise of its right to decline to accommodate the military's discriminatory practices, ensuring that the university's actions are consistent with state policy. In a very real way, E.O. 28.1 is the university policy on this matter. As such, it does not address the military, nor does it impair in any way the military's freedom to persist in discriminating. Under 21 is, therefore, inapplicable to the present case. Respondent has confused the issues by insisting that "[t]he Office, by its decision, has applied, the Executive Order to ... a non-State entity." Respondent's Brief at 12. This is clearly false. E.O. 28.1 is being applied only to Respondent; what effect, if any, that application may have on the military's subsequent decisions or, for that matter, on Respondent's relationship with the military, is irrelevant for purposes of these proceedings. Again, the Order and this State's policy of non-discrimination apply to Respondent, not to external parties. As the Office noted in its determination, "Because Respondent is a New York State University, and consequently a `State agency' within the definition of the Governor's Executive Order 28.1, it is obligated to follow the executive orders of the State of New York." Order at 5. Furthermore, because E.O. 28.1 does not require potential employers to refrain from discriminating on the basis of sexual orientation, but merely prohibits Respondent from providing services to assist in those practices as they affect Respondent's students, there is no third-party issue presented by the application of E.O. 28.1 to Respondent. Respondent's allegations are wholly without merit and should be rejected. POINT III BY FAILING TO ENSURE THAT GAY AND LESBIAN STUDENTS ARE PROVIDED EQUAL, NON-DISCRIMINATORY SERVICES AND BENEFITS THROUGH ITS CAREER DEVELOPMENT AND PLACEMENT OFFICE, RESPONDENT VIOLATED E.O. 28.1. The functions of the CDO are among the most vital services that Respondent provides to its law students. The University of Buffalo Law Bulletin states: "The Career Development Office assists students planning their future opportunities after graduation." See Complaint at 4. The CDO exists to provide students and employers services and facilities for placement and counseling. Its function is not to provide sham interviews, but rather to facilitate genuine opportunities for hiring and career development. It is the state-run equivalent of an employment agency. Employment agencies have long been recognized as covered by federal and state statutes prohibiting discrimination, and university placement offices are clearly included as employment agencies. See, e.g., Kaplowitz v. University of Chicago, 387 F.Supp. 42 (1979) (law school placement office within definition of employment agency). In NYC Comm'n on Human Rights v. Boll, 8 FEP 1139 (N.Y. Sup. Ct. 1974), the court held that where a graduate school gives counsel, maintains records of job openings, and generally aids students in finding employment, it functions as an employment agency as defined by the New York City Human Rights Law. Respondent attempts to evade its obligations under E.O. 28.1 by placing the blame for the inequality of benefits and services on the military. Says Respondent, "[We] did not deny any service or benefit to gay and lesbian students within the meaning of the Order," Respondent's Brief at 12, rather, it is the military that does the discriminatory denying. Respondent would have the Commissioner ignore the role of the CDO in lavishing state resources, services, benefits, and facilities to further that discrimination, thus facilitating the provision of unequal services and benefits and depriving students of equal services and benefits elsewhere. The main issue is "whether the function of a state university's career development office equals 'the provision of any services or benefits' to the students of that university within the meaning of E.O. 28.1." Order at 4. The Office found that it does. Id. Respondent absurdly contends that gay and lesbian students have overcome employment discrimination by the mere fact of having access to a job interview, even though an employer proclaims from the start that they will have absolutely no access to the job itself. However, E.O. 28.1 requires the state university's CDO to do more than merely offer students "access" to a charade of an interview in which there is no genuine hope, not merely of employment, but even of merit-based consideration. When the CDO advertises a recruitment visit by a particular employer, duplicates and displays materials from that employer, devotes staff time to counseling, reserves rooms at the university for the interviews, collects resumes, and schedules the interviews the employer indicates it wants, the CDO is expending university funds and devoting university resources to provide these services to both students and employers. When these services are provided, and funds are devoted, on behalf of a employer who discriminates, the CDO is clearly providing services and benefits in furtherance of prohibited discrimination. Moreover, where state resources and facilities are expended on such charades, they are diverted from the development of real career opportunities and other truly productive uses. Lesbian and gay students are thus deprived of services and benefits that are indeed non-discriminatory and meaningful for them. It is the policy of this State, and of the state university system, as set forth in E.O. 28.1, that all state agencies must maintain equality of services and benefits, and ensure that in the provision of such services they do not discriminate, as a principal or accomplice, on the basis of sexual orientation. Respondent administrators have failed to carry out that directive. Accordingly, the determination and order of the Office was correct and should be affirmed by the Commissioner. CONCLUSION Respondent should be granted no special exemption from this State's lawful policy of non-discrimination by state agencies, nor should students at the state university be denied the assurance of equal treatment that E.O. 28.1 provides to those dealing with the State. To give meaning to the Executive Order's prohibition on sexual orientation discrimination by all state agencies in the provision of all services and benefits, the Order should be affirmed. Dated: November 25, 1991 New York, New York Respectfully submitted, Evan Wolfson Lambda Legal Defense & Education Fund, Inc. 666 Broadway, 12th Floor New York, NY 10012 212-995-8986 Counsel of Record Timothy W. Reinig* Robinson, Silverman, Pearce, Aronson & Berman 1290 Avenue of the Americas New York, NY 10104 212-541-2000 Cooperating Attorney for Lambda Attorneys for Complainant * Passed bar exam, awaiting admission. CERTIFICATE OF SERVICE I hereby certify that I caused a copy of this Brief in Support of Complainant, Jane Doe, to be delivered and served on November 25, 1991, by U.S. Mail upon: SANFORD H. LEVINE University Counsel and Vice Chancellor for Legal Affairs Attorney for Respondent State University of New York State University Plaza Albany, New York 12246 Attention: CAROLYN J. PASLEY LEWIS E. ROSENTHAL Associate Counsels of Counsel _________________________________ EVAN WOLFSON Attorney for Complainant