NYS Division of Human Rights Finds "No Probable Cause" that City of North Tonawanda School District Was Engaging In Unlawful Discriminatory Practice

The Standards: The NYS Division of Human Rights Commissioner or designee are given broad authority to investigate and pass upon complaints alleging violations of the Executive Law of the State of New York. To test and investigate and to make, sign and file complaints alleging violations of the Human Rights Law and to initiate investigations (Article 15 of the Executive Law, NYS Division of Human Rights, Laws and Regulations).

In A Determination and Order After Investigation, dated 2/27/07, on the Complaint I filed with the NYS Division of Human Rights on behalf of Michael against North Tonawanda City School District charging North Tonawanda City School District with an unlawful discriminatory practice relating to education in violation of Article 15 of the Executive Law of the State of New York (Human Rights Law) because of sexual orientation, NYS Division of Human Rights Regional Director, Tasha Moore, found "No Probable Cause" that the City of North Tonawanda School District was engaging in discriminatory practice relating to education because of sexual orientation.

Regional Director, Tasha Moore, states in her Determination and Order After Investigation (Case No. 10108712):

"After investigation, and following opportunity for review of related information and evidence by the named parties, the Division of Human Rights has determined that there is NO PROBABLE CAUSE to believe that the respondent has engaged in or is engaging in the unlawful discriminatory practice complained of. This determination is based on the following:

The investigation did not reveal sufficient evidence to support a belief that Complainant's son was discriminated against in regard to education, because of his sexual orientation. The investigation revealed that ... when Complainant's son informed Respondent of harassment in a gym class due to his sexual orientation, Respondent attempted to address the problem but he refused to identify the students harassing him. The record shows Respondent took appropriate steps by affording him the opportunity to change in a separate room and make up work for the first 10 week period while working with a social worker and mentor to return for the next marking period. The record indicates Complainant's son was not told to "tone it down" by the Principal; this was suggested by a social worker and mentor working with him. The record shows Respondent Principal met with Complainant and her son the same day the death threat was found, but was unable to complete an investigation because the threat was anonymous, the teacher could not identify the handwriting and Complainant's son could not identify anyone who might have written the threat. Respondent states there could have been 100 to 150 students in and out of the room where the planner was left, for various classes. Complainant confirmed the police department was also unable to proceed with an investigation of the threat. Respondent proposed an alternative school program for Complainant's son for the safety issue, as well as prior concerns related to poor school work and behavior, which Complainant rejected. The evidence does not support a belief that Respondent discriminated against Complainant's son because of his sexual orientation.

The Complaint is therefore ordered dismissed and the file is closed." (Determination and Order After Investigation, Case No. 10108712, NYS Division of Human Rights, 2/27/07).
Ms. Moore held sufficient knowledge and substantial material evidence that among other matters, North Tonawanda City School District denied Michael had been harassed constantly by other students because he is gay, denied I brought this to the attention of James V. Fisher Principal, on a regular basis, denied having information and knowledge sufficient to form a belief so as to admit or deny that on October 12, 2005, Michael discovered a death threat which was written into his day planner, and denied information and knowledge sufficient to form a belief as to the paragraph "His solution was that Michael should "tone it down" and that James V. Fisher refused to take appropriate action or to report the matter to the police as required." (denial statements from: Copy Respondent's Response, Case No. 10108712, NYS Division of Human Rights, RECEIVED NOV 16 2005 Buffalo Regional Office)

The Truths: The record could not show that "...Respondent took appropriate steps by affording him the opportunity to change in a separate room and make up work for the first 10 week period while working with a social worker and mentor to return for the next marking period."

Upon sworn Affidavit of Respondent James V. Fisher, Principal of the North Tonawanda Senior High School, Michael "...was offered a contract soon after September 29 that relieved him of traditional participation in Physical Education." (Respondent's Affidavit, #7., Case No. 10108712, NYS Division of Human Rights), and

"Despite the development of a contract allowing alternatives to traditional participation in Physical Education, Michael seldom reported to the class. Part of this contract stipulated that Michael would not be required to change into physical education attire for the remainder of the first quarter of the school year." (Respondent's Affidavit, #10., Case No. 10108712, NYS Division of Human Rights)

(I have not been able to obtain a copy of this alleged "contract". If in fact Michael entered into this alleged "contract", Michael entered into it without my knowledge or consent. A violation of law upon the child as a minor, who has no authority to enter into a "contract" without express written consent or authorization from the parent. )

Respondent James V. Fisher further alleges: "Mrs. Mangus alleges that the extent of my concern was to advise Michael to "tone it down." This narrow excerpt from our total conversation was derived from my recollection of a previous conversation I had with his social worker, who had met with Michael, and had discussed ways in which Michael might draw less attention to himself." "...". (Respondent's Affidavit, #20., Case No. 101087121, NYS Division of Human Rights).

"Discussions with the school Social Worker are confidential." (North Tonawanda City School District, Policies & Regulations, Social Work Services, page 36, NTHS Day Planner 2005-2006) and Michael's privileged communications (if this communication in fact took place) were exploited and unlawfully released to and obtained by Principal James V. Fisher.
The "Record" , among other matters, also does not show:

1. By letter dated 14 October 2005, James V. Fisher Principal, North Tonawanda High School was provided sufficient information to proceed with an investigation (Rebuttal, Exhibit C, Case No. 10108712, NYS Division of Human Rights). Principal Fisher and City of North Tonawanda Police Department willfully and intentionally quashed the investigation.

2. By letter dated 18 October 2005, James V. Fisher Principal, North Tonawanda High School was informed that the Alternative High School program was not an option for the reasons "It appears to me that the location (Boys & Girls Club on Franklin Street in Tonawanda) is not a secure location. People can, and did arbitrarily walk in and out of the building with no apparent supervision. Additionally, the aesthetics are poor. More important, according to members of your staff, the Boys & Girls Club does not supply heat to the building on a regular basis, claiming it is too expensive. And, when the heating system needs repair, they hope to find someone who will fund it; otherwise the problem(s) is not addressed appropriately. The students as well as members of your staff were apparently cold." I also reiterated that
"...when I suggested that, in particular, the heating needs to be addressed by you, you indicated that it's the Boys & Girls Club responsibility." (Rebuttal, Exhibit C, Case No. 10108712, NYS Division of Human Rights).

I questioned Ms. Moore's competency on this matter by letter dated 25 April 2007 to Commissioner Kumiki Gibson, NYS Division of Human Rights. Ms. Moore, as an agent of thestate, is charged with examining accuracy of facts and legal specifications. Among other matters Ms. Moore should be very aware that discrimination includes separation and segregation; that securing conversations with and obtaining documents from individuals that another has privileged communication with is unlawful. Ms. Moore should also be aware that to support in writing any unlawful discriminatory remark made by any individual that is designed to oppress the authenticity of an individual or, to support in writing any practice designed to separate and segregate an individual is in fact DISCRIMINATION. Ms. Moore's decision in fact also contains false statements and attempts to portray Michael in an unfavorable light. Yet, the NYS Division of Human Rights Legal Bureau, by letter dated June 14, 2007, finds:
"There is sufficient evidence in the record that the school district took prompt and appropriate corrective action in response to your son's complaints of harassment." Additionally, the Division's determination was based on all the evidence submitted by both parties, not solely on the affidavit of Mr. Fisher. Thus we do not find that Ms. Moore failed to execute her duties appropriately."
There is also sufficient evidence in the record that City of North Tonawanda School District "school officials" were having inappropriate and harmful conversations with Michael without my knowledge and consent, and I only learned of these alleged conversations between Michael and the school social worker upon receipt of sworn Affidavit of Principal Fisher (Respondent's Affidavit, Case No. 10108712, dated January 31, 2007). A tremendous burden was being placed upon Michael by "school officials" to conform: "to tone it down", "to draw less attention to himself"; a gross violation of Michael's civil and human rights.

Please Note: The Alternative High School program, enrolling students from both Niagara and Erie counties, formerly located at the Boys & Girls Club of the Tonawandas, has this school year (2007-2008) been moved to Grant Elementary School, located in North Tonawanda, NY. It is my understanding that the students now have both heat and access to a school nurse.

Update: According to the Huffington Post: "The New York State Court Of Appeals ruled [June 2012] that the state's students cannot use The New York Human Rights Law-- which prohibits discrimination based on “age, race, creed, color, national origin, sexual orientation, military status, sex or marital status”-- to get recognition of discrimination or get financial compensation for such discrimination." Read more.