# Petition for Writ of Certiorari — Independent School District No. 196 v. Cybyske > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2194%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 933 ## Text | Office -Supreme Court, U.S. FILED AUG 31 1984 ALEXANDE® L. STEVAS, CLERK NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 Independent School District No. 196, Rosemount-Apple Valley, Minnesota, et al., Petitioners, vs. Lynne E. Cybyske, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE MINNESOTA SUPREME COURT James E. Knutson* David S. Bartel Knutson, Flynn & Hetland, P.A. 345 Cedar Bldg., Suite 800 St. Paul, Minnesota 55101 Telephone: (612) 222-2811 Attorneys for Petitioners *Counsel of Record QUESTIONS PRESENTED 1. Whether the Minnesota Supreme Court erred in holding, contrary to Singleton v. Wulff and its progeny, that Respondent Lynne Cybyske had standing to assert a violation of the associational freedom of her non-party spouse. 2. Whether Respondent's First Amendment freedom of association inclu- des, vicariously, the political beliefs and associations of her non-party spouse. TABLE OF CONTENTS Page Opinions Below ...cccececcvees 2 Jurisdiction ...ccrccccccccsece 2 Constitutional and Statutory Provisions Involved ........... 3 Statement of the Case ......e.. 5 Reasons for Granting the Petition ..crwcccccccccvces 15 Conclusion ..ccccccccccsccccece 2€ Appendix A e@eeeeaeveveeveee eevee e eee A-1 Appendix B e@eeeevveveeeeee eee e208 B-1 TABLE OF AUTHORITIES Cases: Page Ashwander v. TVA, 297 U.S. 288 (1936) wcccccccccces 22 Baker v. Carr, 369 U.S. 186 (1962) eeeeeev eee eee 23 Barrows v. Jackson, 346 U.S. 249 (1953) ccccccccccess 24 Bates v. City of Little Rock, 361 U.S. 516 (1960) ..ceceeeeeees 19 Elfbrandt v. Russell, 384 U.S. 11 (1966) eeeeeee#es#8ee2e#38e#8e 12 Flast v. Cohen, 392 U.S. 83 (1968) cccccsccceces 24 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) wcccccccceees 19 Holden v. gi 169 U.S. 366 (1898) ...ccccccccces 23 McGowan v. Maryland, 366 U.S. 420 (1961) wwcccececeees 24 Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977) eeeeee7#2e#@ee#eee#2e#8e#8e#e 15 NAACP v. Alabama, 377 U.S. 288 (1964) @eee0e3ee25eoe#8¢e8¢ee#e#es 20 Cases: Page NAACP v. Alabama, 357 U.S. 449 (1958) eeeeevevnevee eee 19 NAACP v. Button, 377 U.S. 415 (1963) wcccccccceces 20 Shelton v. Tucker, 364 U.S. 479 (1960) ccccccccccee 20 Sherer v. Waier, 457 F. Supp. 1039 (W.D. Mo. 1978) eeeeoeeenee ee ee eee 24 Singleton v. Wulff, 428 U.S. 106 (1976) ..cceeeeeeeee 16,17, 18,22-24 Sullivan v. Meade Independent School District No. 101, 530 F.2d 799 (8th Cir. 1976) .... 12 Sweezy v. New Hampshire, 354 U.S. 234 (1957) wccccceeceees 19 Constitution, statutes and rules: U.S. Const. Amend. [I ...ccceceees 4 U.S. Const. Amend. XIV ...eeeeees 4 42 U.S.C. §$ 1983 wcccccccccceeeee 4°5,7 Minn. R. Civ. Pe. 12 ceccccccceees 9 Minn. R. Civ. P. 56 eeeeeeee eee ee 4 NO. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1983 Independent School District No. 196, Rosemount-Apple Valley, Minnesota, et al. ,* Petitioners, vs. Lynne E. Cybyske, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE MINNESOTA SUPREME COURT Petitioners respectfully request the Supreme Court of the United States to issue a Writ of Certiorari to review the judgment and opinion of the Minnesota *The other parties to this case are Petitioners Lee Droegemueller, indivi- dually and as Superintendent of Independent School District No. 196, Ruth Randall, individually and as Supreme Court entered and filed in this proceeding on April 6, 1984. OPINIONS BELOW The Opinion of the Minnesota Supreme Court, reported at 347 N.W.2d 256, appears in Appendix A. The Order and Memorandum of the Dakota County District Court (the court of original jurisdiction), which is unreported, appears in Appendix B. Director of Personnel of Independent School District No. 196, and Robert Keeton, individually and as Director of Elementary Education of Independent School District No. 196. Independent School District No. 196 is a public corporation as defined by section 122.02 of Minnesota Statutes. pin been created by the Minnesota Legislature, it is a political sub- division of the state and it has no parent, subsidiary or affiliate cor- porations,. va, Gn R iy Sei, o a i 9) F ar hn ie St o> ea we Tp FE aS s -~ oy Ae ty vn s 6 : be % ; . : a 4 ou i ih , wae ‘ ¢ Ca) ri ? 7 ¢ F255 We i ; - 3 a 7 ant | Sah dad FY : =) ee we pe A fin 2, me Ae CPt eG ‘ Sx f+ a me's giwt S033 b IBA: : Fier ee ee gt oa “! (8c qusate * : emis ote “hee JURISDICTION The judgment of the Minnesota Supreme Court was entered and filed on April 6, 1984. Petitioners’ Application for an Extension of Time within which to file a Petition for a Writ of Certiorari was granted by an Order signed by Justice Blackmun dated June 25, 1984, which gave Petitioners until and including September 3, 1984 to file this Petition. This Petition was filed by that date. The judgment of the Minnesota Supreme Court having become final, United States Supreme Court jurisdiction is invoked under 28 U.S.C. § 1257(3). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the Constitution of the United States provides: oo Congress shall make no law - « « abridging the freedom of Speech .. . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Sections 1 and 5 of the Fourteenth Amendment to the Constitution of the United States provide: Section 1. ....- WNo state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Title 42, section 1983 of the United States Code provides: Every person who, under color of any statute, ordi- nance, regulation, custom, or eitkgy eee A a ae eel ee Sy ai + Pe ta —_ insilen aa 2 ‘oe a aa usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other per- son within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper pro- ceeding for redress .... STATEMENT OF THE CASE Respondent Lynne E. Cybyske initiated this civil action against Petitioners in the Dakota County District Court (trial court of ori- ginal jurisdiction) during June of 1981. Respondent claimed that Petitioners had infringed upon her First Amendment right to freedom of association under the United 16en ae Se)” iy a Pe re es j ar ee ' tc Aassoa Te 4 ea Se ete theta, pate: han Der Tea eae rae bederhne eked ote OF . ds ae oe | Fe ase % woe: ¥o- ogame oe sok wiabh pet ee aie Rlshesnecsaiiial ASS tee aiteslol ie ores gdoGt rote a. testo a. sarees asraniserely sa nzuiote to sbi savage. eas oe mat soe dite cre ininnstat Tae as nil States Constitution. Respondent also claimed that Petitioners had violated state discrimination laws, that she had been deprived of her right to freedom of choice in marriage in violation of the Fourteenth Amendment to the United States Constitution, and that Petitioners had engaged in a civil conspiracy to deprive Respondent of her civil rights. In her prayer for relief, Respondent sought con- pensatory damages, punitive dama- ges, attorneys’ fees and an injunction to order the school district to hire her as a public school teacher. Only the freedom of association . >t 7 y = ee ae see ee ee ey 2 eee ee oes ees Se ey ee a! ee ee eee ee pr ae ay se Le Fe claim remains at issue in this pro- ceeding, the Minnesota Supreme Court having dismissed Respondent's state and other federal constitutional claims. As to that freedom of association clain, Respondent's complaint alleged that the "actions of defendants in refusing to hire Ms. Cybyske because of her relationship to her husband infringe on her right to freedom of association in violation of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983." (Complaint @ 24.) Respondent had been employed by Petitioner Independent School District No. 196 as a teacher during the ae 4 ti : X a! + : % Seppe? Cate Soa lh Qctved Bs ; ; 7 : : thes - a : : 5 7. ee ee, aya 4 4 at y Ji ‘ ot) ' BOG 2 > iva : * ov 7 - " a ? x Lai ques -« JovbSoquss if Cre aweD: Pt Ent F491 ‘oe X 1 . i .o% n . , . i ‘ ai j ' vit 4 — a ; ‘ owl : , y 4 a 235 - >. re - ' * 2 } j 4 t4 Hrecsioin tan 14) ee : eres eB a ». e By ' ey 5 | aay ; ~ : * % ; > eae ee. act went: pris, A ; ae ‘mn oa’ } : is a TH Os at canis. a * a “ ‘ 2 ‘> ~e Tr ¥ 4 ay we 3 > F ne ee Gi), i™s aye ow, } oz Pa , huest bot Pheerncwdp has tT ® J oe ae 4 at?r 2) ah * 1979-1980 school year. At that time she was employed as a substitute to replace another teacher who was on a leave of absence. Her employment expired at the end of that school year. After her employment expired, a vacancy arose in Independent School District No. 196 for another teaching position for the 1980-1981 school year. Respondent applied and was interviewed for that posi- tion along with several other applicants. Someone else was hired for that position. During the 1979-1980 and 1980-1981 school years, Respondent was married to Daniel Cybyske. Daniel Cybyske was a member of the school board (the a W aed ae lea a a ART LL ey ee are a ee 4k > Bae SENSIS FOCRASY P - - 72 . 7% 47. 2 Is | # ae . at te A ok eae) ,.. 5 # ¥ . a7 (2iFsgwy Rirsnirvss s a a 7 7 « . - Beh) POUR WAVER): 6 URBY, SOLS . mw is x a aw? Lg § fies 5 [la * ty La . 4 . . i= - a a a mi . e3o¥vNe AZIw SOLe HGTS by *3 OP Fan SY 137 ,aua ae % case 3 ie v4 ’ = . 173 2.220 Pat Ss $€ . ~ a . .. > ae rt 7 -[ eh #283. 2a 3S ab 2 - 4 i fr ‘ 1 ~ t 7 rs md . i y * . Se ‘ f 4 . > oe = ‘> "y59 24 6} 4 g 4 + Na A » a2" om 4 : j ‘ é 7 » Fy b> oe 1 F AS oa + pt 8 od ‘ . ts * : J J : . : g . , 7 » ’ J i ' #: - a > “~ i. | . - # ; y t 4 + = ¢ - 11 Minnesota Supreme Court's reversal on the issue of infringement of Respondent's First Amendment right to freedom of association under the United States Constitution. In its opinion the Minnesota Supreme Court concluded that there may have been an infringement upon Respondent's right to freedom of association due to Daniel Cybyske's political views. See 347 N.W.2d at 262; Appendix at A-26 to -27. The Minnesota Supreme Court first recognized that Respondent's associational freedom extended to her right to associate with her husband who was exercising his First Amendment right to free speech: : gs ' ‘ ipa ‘i an an, : ; ‘ : f a —_ * i 12 If the failure to hire Lynne was indeed based on her hus- band's membership and known Opinions as a member of a neighboring school board, Lynne Cybyske's associational freedoms were thereby compro- mised. "The Constitution affords * * * a right of asso- ciation with other persons for a variety of purposes." Sullivan, supra, 530 F.2d at 804 (citations omitted). Surely, the right to associate with another person for the purpose of marriage is a basic right. Where the public employer discriminates against a job applicant because the employer dislikes the activi- ties of the applicant's spouse, particularly where that spouse is only exercising his or her first amendment rights in the performance of public service as a school board member, it would seem that the job appli- cant's associational freedoms have been impaired. Cf. Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966) (loss of public employment for membership in Communist party violates freedom of political association). 13 347 N.W.2d at 262; Appendix at A-25 to -27. Nowhere in its opinion did the Minnesota court intimate that Respondent was exercising her right to express or advance political views. Only Daniel Cybyske was exercising the right to speak on matters of public interest. The Minnesota Supreme Court was careful to point out that Respondent had not been denied her right to marry: In this case, the defen- dants' refusal to hire Lynne Cybyske did not deny her the right to marry; it did, however, dllegedi> discriminate against her because of her particular choice of marital partner. 347 N.W.2d at 263; Appendix at A-29. The court then went on to expand ah or en Fa mer a pe a eee / ; , f he i) eh ‘ i s ‘pitocaaninis 985.55 | 4 aulelpiess wa JesbAlogagea © € + * —— - 7 q “ Ghee See es a kas aeeae ehrep nt tog : : : A =) a ‘ sas lig: Agvace ~ et? wel Seadaeirt Fan... &, 3 a é si 4soc tok gnahi =>. Jationg Viegas is: & %@° 3rereoneebs ony 4 wielo ob eee Sashneqsarn ss. : ripe eT Ee Bn. 20 inbse +? ‘oeH pe « 7 3u31L Jano ea3. 21 Perhaps Respondent views the marriage relationship itself as being a sufficient associational interest. But she has not alleged that this rela- tionship has as its purpose the advan- cement of any belief or idea, nor has the United States Supreme Court recognized the marriage relationship for the purpose of freedom of asso- ciation. It is true, as the Minnesota Supreme Court recognized below, that Respondent does have a constitutional right to marry. But she has not been deprived of that right, and that right is no longer at issue in this pro- ceeding. 347 N.W.2d at 263; Appendix at A-29. 22 In essence, Respondent is invoking her husband's right to freedom of asso- ciation as her own. But the rules of standing do not permit Respondent to attempt to vindicate another person's constitutional rights in this proceeding. As the Court observed in Singleton v. Wulff, 428 U.S. 106 (1976): Federal courts must hesitate before resolving a controversy, even one within their constitu- tional power to resolve, on the basis of the rights of third persons not parties to the litigation. The reasons are two. First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not. See Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-83, 23 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (offering the standing requirement as one means by which courts avoid unnecessary constitutional adjudications). Second, third argon ony themselves usually will e the best proponents of their own rights. The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before then. The holders of the rights may have a like preference, to the extent they will be bound by the courts’ decisions under the doctrine of stare decisis. See, e.g., Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962) (standing requirement aimed at "assur[ing] that concrete adverseness which sharpens the presentation of [the] issues upon which the court so largely depends"); Holden v. Hardy, 169 U.S. 366, 397, 18 S.Ct. 383, 390, 42 L.Ed. 780 (1898) (assertion of third parties’ rights would come with "greater cogency” from the third parties themselves). These two con- siderations underlie the Court's general rule: "Ordinarily, one may not claim standing in this Court to vin- . = i eT x8) o8D galisit i 3 raterq-b ine pg oe “A bet ¥ | rey on f ie She SORT) nib bo aae oS ga . re 5 i ie rt se ce S| ots w.. is ta a ob TS she 24 dicate the constitutional rights of some third party." Barrows v. Jackson, 346 U.S. at 255, 73 S.Ct. at 1034. See also Flast v. Cohen, 392 U.S. at 99 n. 20, 88 S.Ct. at 1952; McGowan v. Maryland, 366 U.S. 420, 429, 81 S.Ct. 1101, 1106, 6 L.Ed.2d 393 (1961). Id. at 113-14 (plurality opinion); cf. id. at 122-31 (four Justices, dissenting in part, adopting a more narrow view of standing). Under this rule, Respondent lacks standing to assert her husband's consti- tutional rights. For this reason the Minnesota Supreme Court erred in finding that Respondent could assert a freedom of association claim »ased upon her hus- band's associational interests. See Sherer v. Waier, 457 F. Supp. 1039, 1047 (W.D. Mo. 1978) (mother lacks standing ad ae a ¥ how A. to eae 2D eastiewt Comat Ne a ryt . « at 9 & eh, a > a + ba a ¥ ha _———— Sa og a 4 Bes : . , } oe ps 7 mie: : ‘ * f : sf , : “wl Mee Ag = toe Lamberg ned: ox aids 2 a 32700 0 Bowehend taal desea 03. ae onigh tibott: ab eee pi rie Pe a nvbs ot 2 deena: wigs snag Tay a st wih ‘ id ; 4 = 1 - tn sad wobe besed Biats ee > a ee ee a ey ew lato setoonas o'boad a RED Ey SR he aR pe ee ie seid Smt Se ae materi SS on eee + ok a. ees vedien) ROT co glk Wy 25 to assert deprivation of daughter's rights). Respondent's husband, Daniel Cybyske, could have chosen to be a party plaintiff at the inception of this liti- gation. But he apparently chose not to do so, and nothing prevented him from joining in the litigation at that time. Because he is not a party his right to freedom of association should not be adjudicated through the claims of a third person. The Minnesota Supreme Court erred in permitting Respondent to maintain a freedom of association claim based on the allegation that she was not hired as a result of her husband's political views. Because Respondent has not 26 alleged that she is being deprived of the right to associate with others for the advancement of ideas or beliefs, she has no claim for violation of her First Amendment rights. The result of the Minnesota Supreme Court's decision is that every time a person is denied employment, that person can bring a constitutional claim based on the identity, occupation or politi- cal views of his or her spouse. This goes far beyond the reach of either the constitutional right to freedom of asso- ciation or the right to freedom of choice in marriage. CONCLUSION Based upon the foregoing, the Petition for a Writ of Certiorari should be granted. J % ic 3 A = ? A, ad 3o sodsas $a ssntih eM 2 4 & i. Oe ot ra . e Sa a os Be peek & s t3e° * &. i be 2 Hy is } re , as PVILEPSae get Ae " pA Sr en eae Re cot ERS Seen sf tw ‘ ee % ss ry $ oe % ir ed rates: mY Gat eek a OM ti~2 4 My ob e : ey oe ahs od BE ie aes il ps ao 2535 bs # ~ es he asiight, eei5t2 d3iw szeiogens os: 3igit ood angpeonevbé af” "ee stels on eed” WE ns aesmbiocA 3% Ji pee? eT, Ne nity Se 0 = “7 Let eee) aa oie al ige2ey Pies ah oS 27 August 3l , 1984 Respectfully submitted, By: se EEN rere J s E. utson* David S. Bartel Knutson, Flynn & Hetland, P.A. 345 Cedar Bldg., Suite 800 St. Paul, Minnesota 55101 Telephone: (612) 222-2811 Attorneys for Petitioners *Counsel of Record awe a ke onSsenixé a“ a -¥ +o9 a3 ~HoOge FSO fuet V8 : enodis feT ee ERS 8 PE faetbod* * ae ’ Ses ce STATE OF MINNESOTA IN SUPREME COURT C9-83-593 Dakota County Simonett, J. Dissenting in part and concurring in part, Wahl & Yetka, JJ. Lynne E. Cybyske, Appellant, vs. 3 Endorsed Filed April 6, 1984 Independent School Wayne Tschimperle District No. 196, Clerk of Rosemount-Apple Appellate Courts Valley, Minnesota, et al., Respondents. SYLLABUS 1. A person who is not hired for a teaching position because of the pro- teacher views of her husband, a member of a neighboring school board, does not have a claim for marital status discri- mination under the Minnesota Human “ peestees. E | ae oh re : sry eee) aye J, , Atertomt? | “am BIH bre rag Al gutioasaeie- Silks Fyeq. at aniyrigenes . ‘LL .adiey 3 Erie | baeesohmad Ase! (& Jdvaa boles sizsqmidgeT simya¥ Ie. #98 ES atteo® aceite jer otombaik ae ‘Sada v = Aeals eoey iesth Jer el odw sow see: rm ee “ -o3g sf Yo pausnad Hie 32 R04 aaltoned “depe & .bretend ced to! enahy vedoaind ‘om sob ,bysad Leodet snd xotrgten ® ‘Ye. lyoelb suzese iatiizae rot mint> & send fag atotannsnikt sks Tabor sviwante Rights Act. She has, however, made a showing of a cause of action under 42 U.S.C. § 1983 for deprivation of her constitutional right of freedom of association sufficient to defeat a sun- mary judgment motion. 2. The trial court did not err in disallowing plaintiff's motion to amend her complaint. Affirmed in part and reversed in part. Considered and decided by the court en banc without oral argument. OPINION SIMONETT, Justice. The plaintiff teacher claims she was not hired by the defendant school district because of "martial status" discrimination and in violation of her | oe constitutional rights. The trial court granted summary judgment to the school district. We reverse dismissal of the constitutional claim for deprivation of the right to freedom of association but otherwise affirm. Plaintiff-appellant Lynne E. Cybyske was hired by defendant- respondent Independent School District No. 196 (Rosemount-Apple Valley) as a long-term substitute teacher for the 1979-80 school year, teaching art and fifth grade at the Westview Elementary School. When this job expired in June of 1980, Lynne applied for another teaching position that was open in the Rosemount-Apple-Valley system, and had an apparently favorable initial inter- view for the position of fifth grade i: THOS: eT eee eg bday — Mere A Esorioe ars 93 to matsevd xqails 103. ‘sieion ae 4 mgs teacher at the Diamond Path Elementary School. Lynne, however, did not get the job. Instead, the school district hired another woman for the position, alle- gedly on the grounds the other applicant had a stronger background in art and appeared to be more student-oriented. Lynne then sued the school district. She claimed that the reason she was not hired was because she was married to Daniel Cybyske, and that the school district did not like her hus- band's “pro-teacher" views. In the spring of 1979, before Lynne had been hired for the substitute teaching posi- tion, her husband Daniel had been elected a member of the school board of the neighboring Burnsville School District. Apparently Daniel had been sc pet tip tip a ee aerator eae - J Set Fa Ps ay ey wee ees z 1 ‘ . ; Fe , . : roiSs . 7 ? 7 : _— = A - si 5 : £ A . . , ? » i. t r oie A ig a 4 oe oe ue ‘ te | sey bee ; . rs " be a See ee ‘ ‘ ' et ; . THERUTAR P im ei) ed, | aS) abe cas sto hati catia a . = q a ¥ : am me fet) i 4 “us o. AP - e ry oe oye ' ¢ P ah, * Pith ee 4 ‘ : é ss tr ?3 3 eryaet ; ee : 5s * ; rv £ = Bok. Pe wt ‘i y ve > a 5 s ) + ot BF . _ o . s -" pea 7 Pi Be e 4 y- ai. » ‘“ - . 7 t ‘ ir . : bacrd | Be ‘badqobs - wje3e voor pee al -aettn oe wt Geet ey aati anit 0 i ret ae . = an . - _ ene pret (CNET ete o8t 6 ay ® oir igsagore ics yomgitos 8 tests asthavid awit ss ot Ce Se yy p = 4 - - ° 4 » * > j ¢ : 43 i Ee a Aa Ee f i m2 | aan = » Bla 282 x eae ERI oe Psi BE Human Rights Act. We acknowledged we were giving a broad interpretation to marital status, stating: We reject the view that “marital status," while it denotes the fact that one is or is not married, does not embrace the identity or situation of one’s spouse. Since respondent does employ married, single and divorced individuals, to hold otherwise would condone discrimination against a portion of a pro- tected class, i.e., job appli- cants already married to full-time Kraft employees. [Citations omitted.] To do so would ignore the broad pro- hibition against arbitrary classifications embodied in the Human Rights Act and would elevate form over substance. 248 N.W.2d at 383 (emphasis added). In Kraft, we held, absent a bona fide occupation qualification, that the employer could not discriminate against a job applicant because of what his or her spouse was doing--which in Kraft ‘ A-12 Ta >! a) la) Age tg " ee 4 ‘ be : “ wad & . : ‘ ad , toch al , rh) ' * ~ ” ae - * ts * f otal at .% ee ‘ * " 7 ¥ 7 Pe . . b we eas q J * ; ; * “4 - a . Adi 7 4 aA yf t . * : let ie fs a oS : su # fa 4 _ ‘ ‘ ? . a edie cally => So 3 ae, rt a i‘? ? i i vat wn - ' i ait M ‘i , “3? mS x : +“ . : be’ wy ; c z bs y > of ae rin vd ) My mt ‘ +) a ' c - , 4 . 4 « - 4 ‘ 7: ' 4 : - a bf 8 P ) 44 Na . vet i é . “~ . ‘ as lye a & ‘ : ~ . ag ? ’ ie } ; ; y , ‘ : i j “ b ; “9 - . ¥ abies i f i: 4 _ \ j . cy * ¢ 4) ‘4 2 . . : ‘ : i f | 4 é : . ) { { 7 q - 4 =" i a a 5 ™ i grav ae ; 4 ie > ee ee ee as dt Sah ARPO RT SAA wees PN, es . = “awe . eee - a Po om ener fare = Saar oon ra nd rie op pees oo was working full time for the same employer. The question in this case is whether that holding should be extended to prohibit discrimination against the plaintiff job applicant because of what her spouse was doing, namely, advocating "disloyal" pro-teacher views while a board member of another school district. In other words, is it "marital sta- tus" discrimination under our Act to retaliate against one spouse because of the political views or associations of the other spouse? The school district answers no, relying on State Division of Human Rights ex rel. Howarth v. Village of Spencerport, 78 A.D.2d 50, 434 N.Y.S.2d 52 (1980). There the mayor fired his secretary because of public dissatisfaction with the secretary's A-13 | eel — S fr x 33 “- fy Biss rp 3 LOCA AS