On certification to the Superior Court, Appellate Division, whose opinion is reported at 147 N.J. Super. 201 (1977).
For reversal -- Chief Justice Hughes and Justices Sullivan, Pashman, Schreiber and Handler. For affirmance -- Justice Clifford and Judge Conford. The opinion of the court was delivered by Handler, J. Schreiber, J., concurring. Conford, P.J.A.D. (temporarily assigned), dissenting. Justice Clifford joins in this dissenting opinion. Schreiber, J., concurring in the result.
The unusual and important issues raised by this appeal concern the nature of the jurisdiction and statutory powers of the Division on Civil Rights and the Commissioner of the Department of Education over complaints charging sex discrimination in courses of academic study and curricula in the public schools. In resolving the legal problems presented, there must be answered the ultimate question as to which of these administrative agencies, the Division on Civil Rights or the Commissioner of Education, each with a solid and substantial jurisdictional claim upon the subject matter, should adjudicate the complaints of discrimination lodged in this action.
Complainants Patricia Hinfey and Jacquelyn Walker for the Monmouth County National Organization for Women filed with the Division on Civil Rights in November 1974 a preliminary complaint charging that the Borough of Matawan, the Borough Council President, the Matawan Regional Board of Education and the Superintendent of Schools discriminated in employment and public accommodations on the basis of sex, age and marital status. Later a formal complaint charging respondents in more detail was filed and docketed. A specific recounting of these allegations is helpful in understanding the jurisdictional conflicts which they have spawned.
One count dealt with patterns and employment practices relating to sports within the high school and middle schools of Matawan. More specifically, this count alleged that
females were excluded from certain classes of sports and were confined to certain "miscellaneous sports"; that there were separate categories in other sports limited either to boys or girls and that more money was funneled into the boys' sports, reflected in the higher stipends paid to the coaches in the boys' or boy-dominated sports; that with respect to the middle schools, girls do not participate in the only sports program available, that only three coaches for the various sports program were women and that there is a boys' gymnasium at the regional high school superior to that for girls. It was further alleged that the Board of Education failed to take any corrective action "combating discrimination in sports." Another count directed at the Matawan Borough of Recreation Commission complained of cheerleading classes for girls only and that the boys' football program has "more extensive planning, time and money." A further charge stated that the "content" of gymnastic courses, which were separate for boys and girls and part of an enrichment program of the Matawan Regional Board of Education, "tends to reinforce sex stereotypes that are not related by sex to gymnastics."
A count against the Matawan Regional Board of Education asserted discriminatory "employment practices and benefits", to wit, male domination in administration, the ostensible failure to recognize maternity leave as a disability relating to childbirth or paternity as a condition justifying similar treatment, a mandatory retirement age policy unrelated to ability and pension entitlement based on years of service or age. Subsumed under this count is the complaint that has triggered the jurisdictional imbroglio in this case:
Sex-segregated courses and conditions related to curriculum include separate boys' and girls' lineups from the kindergarten through higher grades; separate courses for boys and girls throughout all levels; textbooks that portray men and women or boys and girls in a sex-stereotyped manner; and library books that portray men and women in a sex-stereotyped manner.
From February 1973 through the end of 1974, forty such complaints charging sexually discriminatory practices in different school systems were filed with the Division. In April 1973 the Deputy Director of the Division, addressing the question whether one of these complaints "should best be processed by the Division or by the State Department of Education", wrote the complainant in that action that the Division was retaining jurisdiction. By October 1975 a number of these cases had progressed beyond a finding of probable cause to the entry of consent orders signed by the districts and the Division. Five cases were ready for public hearings and another five were awaiting conciliation.
As early as January 1975, one of the respondent boards of education moved to dismiss the complaint pending against it on the ground that the Division lacked jurisdiction over claims alleging discrimination in public school curricula. This motion was denied by the Director of the Division in February 1975. The Attorney General's office then advised the Division not to prosecute these cases beyond the conciliation stage until an opinion was rendered on this jurisdictional question. The Director formally requested such an opinion and on October 15, 1975, Attorney General Formal Opinion No. 28-1975 was issued in which the Attorney General concluded that the Division has no jurisdiction over complaints alleging discrimination in public school curricula and that the jurisdiction of the Commissioner of Education in this regard was exclusive. Accordingly the Director informed the parties to the Matawan complaint that the case had been closed and the file transferred to the Department of Education. By an order the Director severed and retained jurisdiction over that part of the complaint alleging unlawful employment practices.
The dismissal and transfer of the Matawan complaint as well as the other thirty-nine dismissed cases were appealed on January 5, 1976 to the Appellate Division. That court reversed the action taken at the administrative level and held that both the Division and the Commissioner of
Education have concurrent jurisdiction over complaints alleging sex discrimination in the area of public school curricula, but with respect to complaints already filed with it, the jurisdiction of the Division was mandatory and it was required to proceed upon them. 147 N.J. Super. 201 (1977). A concurring opinion observed that the court's result leaves the Division and Commissioner as competitors in the areas of curriculum management, but that the remedy for this "anomalous situation" should best be left to the Legislature. Id. at 211-212. Upon this reversal, the Director of the Division, through the Attorney General, filed a petition for certification which was granted. 74 N.J. 264 (1977).
We have concluded that the Appellate Division was correct in determining that the Division on Civil Rights and the Department of Education have concurrent jurisdiction to entertain complaints charging acts of sex discrimination in public school courses of study and curricula. That court erred, however, in ruling that the jurisdiction of the Division in this respect was mandatory, that it had in effect a nontransferable statutory duty to proceed upon those discrimination charges actually filed with it. We hold that discrimination complaints involving the subject matter of public school curricula and courses of study should be handled by the Commissioner of Education and that such complaints, though filed originally in the Division on Civil Rights, should be transferred to the Commissioner of Education. The judgment below is therefore reversed.
The Attorney General, in expressing the opinion that the Commissioner of Education has exclusive jurisdiction to hear discrimination controversies involving public school curriculum, reasoned that the jurisdiction of the Division on Civil Rights was statutorily limited by the Law Against Discrimination. N.J.S.A. 10:5-1 et seq., to "specific"
acts of discrimination and that, in contrast, the Commissioner's wide statutory authority over public schools, educational policy and school controversies, as well as acts of discrimination specifically referred to in L. 1973, c. 380, N.J.S.A. 18A:36-20, was inclusive of the content of public school curriculum offerings. For that reason the Attorney General believed that the Division on Civil Rights had no extant jurisdiction to deal with discriminatory acts and practices relating to public school courses of study.
The questions posed by the analysis thus framed are whether the statutory subject matter jurisdiction of the Division on Civil Rights is so constricted as to exclude invidious discrimination in public school curricula and, if it is not so limited, whether the authority of the Division over such complaints, when juxtaposed with the pervasive statutory powers of the Commissioner of Education over public school policy, has been or should be displaced by the jurisdiction of the Commissioner.
It is well to start with the Law Against Discrimination, N.J.S.A. 10:5-1 et seq. The evolution of that law into its present state has been told many times. That history is one of burgeoning jurisdiction in the Division on Civil Rights and the continued strengthening of its remedial powers. A brief recapitulation of that progression, though reiterative to some degree, underscores the irrefutable conclusion that the Division on Civil Rights has the statutory jurisdiction to entertain sex discrimination complaints relating to public school curricula.
The Division on Civil Rights originated in the Law Against Discrimination, L. 1945, c. 169. Section six of this Act created the then Division against Discrimination within the State Department of Education. The Division was given the power to prevent and eliminate discrimination in employment on the basis of race, creed, color, national origin or ancestry, "and to take other actions against discrimination," and was granted "general jurisdiction and authority for such purposes." The special concern of the
1945 Law Against Discrimination was employment, as evidenced by section four, which declared that "the opportunity to obtain employment * * * without discrimination * * * is recognized as and declared to be a civil right."
This focus soon shifted. The 1945 Act was amended by L. 1949, c. 11, § 2 to extend the Division's jurisdiction over discrimination with respect to "all the accommodations, advantages, facilities, and privileges of any place of public accommodation", including "any * * * primary and secondary school, * * * or * * * high school * * * under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey." Id. § 3(j). This broadening of concern was reflected as well in the increased authority granted the Division. L. 1949, c. 11, § 5(h). In the next decade the jurisdiction and enforcement powers of the Division were augmented, most significantly in the area of housing. L. 1954, c. 198, § 1 (public housing); L. 1957, c. 66, § 1 (publicly-assisted housing); L. 1961, c. 106, § 1 (some privately-financed housing). In 1961 the Division Against Discrimination was renamed the Division on Civil Rights, L. 1961, c. 106, § 3, and shortly thereafter, symbolic of greater emphasis upon enforcement over education and suasion, Blumrosen, "Antidiscrimination Laws In Action In New Jersey: A Law-Sociology Study", 19 Rutgers L. Rev. 189, 205-207 (1965), the Division was transferred from the Department of Education to the Department of Law and Public Safety under the supervisory authority of the Attorney General and the Director of the Division on Civil Rights. L. 1963, c. 40, § 2. The years following this relocation have witnessed a steady widening of the jurisdiction and powers of the Division. ...