holding that "[c]omity and deference to cognate tribunals are designed to assure that a controversy, or its most critical facets, will be resolved by the forum or body which, on a comparative scale, is in the best position by virtue of its statutory status, administrative competence and regulatory expertise to adjudicate the matter"
How later courts described this case
- holding that "[c]omity and deference to cognate tribunals are designed to assure that a controversy, or its most critical facets, will be resolved by the forum or body which, on a comparative scale, is in the best position by virtue of its statutory status, administrative competence and regulatory expertise to adjudicate the matter"
- holding that more specific antidis crimination statute did not preempt broader antidiscrimination statute despite the existence of separate administrative bodies charged with combatting the same form of discrimination
- applying “administrative comity” to resolve jurisdictional conflict as between agencies having concurrent, discretionary authority
- rejecting argument that education statute impliedly repealed Law Against Discrimination; statutory incompatibility must be inescapable
Written by the judges who cited it.
The opinion
Schreiber, J.,
concurring. The majority assumes that the Division on Civil Rights has jurisdiction in a sex discrimination case to fix and determine curricula in the public schools. This assumption is a mistaken one — for the Division has never been, expressly or impliedly, vested with the authority to determine what courses should be taught in public schools. Reliance upon N. J. 8. A. 10:5-4 for that assumption is misplaced.
N. J. 8. A. 10:5-4, admittedly a cornerstone of the act, recognizes the civil rights of all persons to obtain employment and to utilize “all the accommodations, advantages, facilities and privileges of any place of public accommodation, publicly assisted housing accommodations, and other real property,” without racial, religious, sex or other proscribed discrimination, subject only to conditions and limitations applicable alike to all persons. This provision, substantially in the same form since 1949, 1 refers to .(a) employment and (b) usage and enjoyment of a place of public accommodation.
*535 Since a public school is included by definition as a place of public accommodation, N. J. S. A. 10:5-5 (Z), the majority points out that courses of study offered would appear to be “advantages” or “privileges” of the school. The majority then concludes that the Division would have the right to fix the contents of those courses of study. But the conclusion does not follow, for the statute prescribes only that the opportunity to attend the courses of study be afforded to all irrespective of sex or other illegal discriminatory reasons.
A distinction must be made between what course is being offered and the availability of that offering. Eor example, a public library is a place of public accommodation. Its books must be open to all irrespective of sex, race, etc. However, what boobs are to be purchased is to be determined by the Library Trustees or Board, not by the Division on Civil Rights. Resolution of the content of the courses has not been vested in The Division on Civil Rights. This authority has been lodged with the Commissioner of Education or other appropriate educational body. A technical reading of N. J. S. A. 10:5-4 to include the shaping by The Division on Civil Rights of the contents of public school curricula stretches the language beyond any indicia of legislative intent to that effect.
When the Legislature, presumably aware of the authority vested in The Division on Civil Rights, N. J. 8. A. 10:5-l et seq., in 1973 directed the Commissioner of Education to provide that
no pupil in a public school in this State shall be discriminated against in admission to, or in obtaining any advantages, privileges or courses of study of the school by reason of race, color, creed, sex or national origin [37. J. 8.. A. 18A:36-20]
it did not intend to have the Commissioner of Education safeguard the identical subject matter from unlawful discrimination as was already being handled in the Division. Certainly the Legislature was fully cognizant that complaints addressed to courses of study and the content of educational programs *536 are more properly addressed to the Commissioner of Education. It confirmed that jurisdiction over this specialized area rested with the Commissioner of Education rather than in the Division on Civil Rights. Public School Education Act of 1975, N. J. S. A. 18A:7A-1 et seq.; Robinson v. Cahill, 69 N. J. 449, 459-460 (1976); Attorney General FO No. 28-1975, October 15, 1975. The issue presented is not one of implied repealer, or even the traditional principle that a specific statute prevails over a more general one, Sutherland, Statutory Construction § 51.05 (1973); State v. Hotel Bar Foods, 18 N. J. 115 (1955), but, rather, acknowledgment that the more pervasive and all-inclusive jurisdiction vested in the State Board of Education and Commissioner of Education in sweeping terms is a legislative recognition that the public interest in appropriate regulation of discrimination in the public schools, at least insofar as curricula are concerned, transcends the general authority of the Division on Civil Rights.
Inherent in the majority position that an administrative agency may permanently abnegate its jurisdictional responsibilities are various difficulties, such as the mandatory obligation imposed on the Division on Civil Rights to execute its statutory duties, see In re Norrell, 139 N. J. Eq. 550, 553-554 (E. & A. 1947), and the binding effect of a determination of the Commissioner of Education under N. J. S. A. 18A:36-20 on The Division on Civil Rights under N. J. S. A. 10:5-1 et seq. Although administrative agencies, having jurisdiction over the same general subject matter under different statutes, may act in concert with or pay deference to each other, their individual responsibilities must remain unimpaired. 2
I concur in the judgment of reversal for the reasons stated.
L. 1949, c. 11, § 2.
See L. 1978, e. 73, approved July 13, 1978, which provides for certain uniform procedures among certain administrative agencies within the Division of Consumer Affairs.