Gay & Lesbian Law Students Ass'n v. Board of Trustees

CALLAHAN, J., with whom PALMER, J., joins,

dissenting. I dissent from the majority opinion because I cannot believe that the legislature in 1984 intended to make a radical change in legislation pertaining to a controversial subject, legislation enacted only the previous year, and yet not one legislator saw fit even to mention the change during the legislative process. When a legislature “abandons previously articulated policies, one ‘would normally expect some expression by [the legislature] that such results are intended.’ United States v. United Continental Tuna Corp., 425 *492U.S. 164, 169, 96 S. Ct. 1319, 1323, 47 L. Ed. 2d 653 (1976).” New Jersey Transit Policemen’s Benevolent Assn. Local 304 v. New Jersey Transit Corp., 806 F.2d 451, 456 (3d Cir. 1986); see Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 481, 542 A.2d 692 (1988) (It would be incongruous for the legislature to alter a clearly defined and well established statute “without spelling out that [change] unambiguously, let alone not mentioning it at all. . . . ‘[A] radical departure from an established policy . . . must be expressed in unequivocal language.’ ”).

In 1983, the legislature enacted No. 83-576 of the 1983 Public Acts (P.A. 83-576), which prohibited the board of trustees of any state university “from denying access to any campus under its jurisdiction to any representative of the armed forces of the United States of America who seeks entrance onto any such campus for the purpose of conducting job interviews.” P.A. 83-576 was adopted in direct response to a situation that had arisen at the University of Connecticut School of Law (law school) wherein the law school faculty had prohibited the military from recruiting on campus because of the military’s policy of discriminating against homosexuals. 26 S. Proc., Pt. 13, 1983 Sess., pp. 4529-30, remarks of Senator Thomas Scott (amendment addresses “the situation at [the law school] where the faculty . . . decided for various reasons that military recruiters should be banned from our University”); id., p. 4533, remarks of Senator Steven Casey (“[the law school] has prohibited certain military service recruiters from recruiting on campus due to their discrimination against homosexuals”). The majority concedes that P.A. 83-576 “provided an unconditional right of access to state schools for military recruiters . . . under all circumstances.” The majority concludes, however, that No. 84-87 of the 1984 Public Acts (P.A. 84-87), which succeeded P.A. 83-576, was intended by the legislature to terminate *493the military’s year old statutory right to unimpeded access to state university campuses and to treat the military exactly the same as any other employer. That conclusion is at odds with the legislative history of P.A. 83-576 and P.A. 84-87 and with well settled rules of statutory construction.

In 1984, the legislature repealed P.A. 83-576 and replaced it with P.A. 84-87, which is currently codified at General Statutes § 10a-149a. Section 10a-149a provides: “Notwithstanding any other provision of law to the contrary, each constituent unit of the state system of higher education and any private college or university which receives state funds shall, subject to the provisions of subdivision (11) of subsection (b) of section 1-19,1 provide the same directory information and on-campus recruiting opportunities to representatives of the armed forces of the United States of America and state armed services as are offered to nonmilitary recruiters or commercial concerns.” (Emphasis added.) No mention was made in the floor debates concerning the bill that became P.A. 84-87 in either the House of Representatives or the Senate regarding any departure from the purpose of P.A. 83-576. Nor was any indication *494given that P.A. 84-87 was intended to circumscribe in any way the military’s access to on-campus recruiting that had been guaranteed only one year earlier.2 The legislative history reveals, rather, that the legislative goal in both 1983 and 1984 was to increase and guarantee campus access to military recruiters. See Conn. Joint Standing Committee Hearings, Education, Pt. 2, 1984 Sess., pp. 403-407, remarks of Major Louis Wein; 26 S. Proc., Pt. 13, 1983 Sess., pp. 4529-33, remarks of Senators Thomas Scott, Eugene Skowronski, Mary Martin and Michael Morano.

The state education committee’s report regarding House Bill No. 5371,3 which became P.A. 84-87, moreover, indicates that the 1984 bill was not intended, as the majority concludes, to alter existing law by conditioning the military’s campus access upon its compliance with Connecticut antidiscrimination laws but, rather, was intended to support the military’s recruitment efforts by not only permitting the military access to campuses but also by giving it access to directory information *495despite its noncompliance. Further, the bill expanded the list of those institutions that had been subject to P.A. 83-576 to include private institutions and public high schools.4 There is no support in the legislative history for the majority’s conclusion that P.A. 84-87 was intended to make inroads on the access to educational institutions for recruiting provided to the military by P.A. 83-576. In fact, the obvious intent of the legislature was to the contrary. Certainly there was no intention expressed to abandon the purpose for which P.A. 83-576 had been enacted a year earlier — i.e., to provide the military the opportunity to recruit on state campuses despite its discriminatory policies. 26 S. Proc., Pt. 13, 1983 Sess., pp. 4529-33, remarks of Senators Thomas Scott, Eugene Skowronski, Mary Martin and Michael Morano. Until now, we have adhered to the principle of statutory construction that “[a]n amendatory act is presumed not to change the existing law further than is expressly declared or necessarily implied.” (Internal quotation marks omitted.) Nichols v. Warren, 209 Conn. 191, 201, 550 A.2d 309 (1988); Doe v. Institute of Living, Inc., 175 Conn. 49, 63, 392 A.2d 491 (1978); see 1A J. *496Sutherland, Statutory Construction (5th Ed. Singer 1992) § 22.30. The majority today inexplicably departs from the well settled corollary principle that “[w]e will not infer that the legislature intended to enact a significant change in existing law without an unequivocally expressed manifestation of legislative intent.”5 State v. Cobb, 234 Conn. 735, 750, 663 A.2d 948 (1995); New Haven v. State Board of Education, 228 Conn 699, 719, 638 A.2d 589 (1994); Kinney v. State, 213 Conn. 54, 66, 566 A.2d 670 (1989). Here, not only was there no “unequivocally expressed . . . legislative intent” to curtail military recruiting by the enactment of P.A. 84-87, there is not even a hint of such intent.

The majority nonetheless relies heavily on legislative history in concluding that § 10a-149a mandates that the *497military is to be treated in precisely the same manner as a private employer, which in this instance would mean, that if the military discriminates on the basis of sexual orientation, it would be denied campus access as would a private employer. The only reference in the Senate debate to the bill that became P.A. 84-87, however, came from Senator Steven Casey who remarked that it “would require all public high schools, state institutions of higher education and all private high schools and colleges which receive state funds to provide [United States] and state military recruiters with the same directory information and on-campus recruiting opportunities that they offer other recruiters.” (Emphasis added.) 27 S. Proc., Pt. 3, 1984 Sess., p. 1131. The majority reads Senator Casey’s remark and similar language in debates on the floor of the House of Representatives as manifesting a clear legislative intent to reverse completely the preexisting legislative policy expressed by P.A. 83-576 to allow military recruitment on campus despite discriminatory hiring policies and to thereafter ban military recruiters from campuses if the military discriminated in its employment policies just as a private employer would be banned if it discriminated in its employment practices.

If the majority is correct that remarks such as Senator Casey’s and a similar remark by Representative Dorothy Goodwin in the House of Representatives make it “unequivocally clear” that the legislature intended to strip the military of its recently guaranteed access to campuses for recruiting purposes, it is difficult to explain strikingly similar remarks made only a year earlier when, it is conceded by the majority, the military was permitted campus access for recruiting purposes despite its discriminatory policies. For instance, in support of P.A. 83-576, Senator Scott commented that “military recruiters ought to in turn be treated like anybody from a corporation or anybody else who wishes to come *498to a campus and talk to students about job opportunities . . . (Emphasis added.) 26 S. Proc., Pt. 13, 1983 Sess., p. 4530. Senator Skowronski added that the legislature “ought to send a message to the Law School that the military ought not to be treated differently than any other group." (Emphasis added.) Id., p. 4531.

In isolation, these comments could be read to indicate a legislative intent that the military be subject to the same laws and rules when recruiting on state campuses as a private employer. The fact that these comments were made in support of a bill that plainly prohibited schools from denying campus access to the military, however, indicates that the legislators who expressed themselves meant only that a school could not prevent the military from recruiting because of its discriminatory hiring policies and that the military should be treated the same as private employers despite its hiring policies. A prohibition of military recruiting on campus by the law school and the intent to nullify that prohibition was, after all, the motivating factor in the legislature’s passage of P.A. 83-576. 26 S. Proc., Pt. 13, 1983 Sess., pp. 4529-33. Bans on military recruiting similarly motivated the legislature to pass P.A. 84-87; Conn. Joint Standing Committee Hearings, Education, Pt. 2, 1984 Sess., pp. 403-407; and the comments in the legislative history of P.A. 84-87 to the effect that the military ought not be treated differently than private employers must be read in light of P.A. 83-576. Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 277, 610 A.2d 584 (1992) (legislature is presumed to act with knowledge of existing law); Kinney v. State, 213 Conn. 54, 65, 566 A.2d 670 (1989) (same). An almost identical legislative history in successive years should not be distorted to mean one thing one year, i.e., 1983, and something entirely different the next year, i.e., 1984. Faced with this reality, the majority is left to argue only that “the legislative history [of P.A. 83-576] indicates *499that . . . unconditional access was not the goal of the statute.” This argument is unsupported by a reading of the entire legislative history of P.A. 83-576 pertaining to the access of military recruiters to campuses.6 More*500over, the majority’s argument suggests that those legislators who spoke in favor of the 1983 bill that resulted in P.A. 83-576 either had not read the bill or had not understood its meaning. Such speculation is unwarranted and is unsupported by the record. I am bewil*501dered by the majority’s argument that P.A. 83-576 granted the military unconditional access to state campuses for recruitment purposes but that the legislative history of P.A. 83-576 does not support such a reading. In order to reconcile the similar legislative histories with their corresponding public acts, we should not, as does the majority, simply dismiss the legislative history of P.A. 83-576 as inconsistent with its plain language. Rather, I would interpret the public acts and their legislative histories to allow the military, despite its practice of discrimination against certain protected classes, to *502nonetheless be provided the same opportunity to recruit on state campuses as a private employer. The majority’s interpretation of the language of § 10a-149a requiring schools to provide the military with “ ‘the same . . . on-campus recruiting opportunities,’ ” to mean that school authorities must ban the military for noncompliance with antidiscrimination laws, not only ignores the circumstances surrounding the enactment of P.A. 84-87 and “ ‘its relationship to existing legislation’ see Murchison v. Civil Service Commission, 234 Conn. 35, 45, 660 A.2d 850 (1995); but also ignores the prefatory phrase of the entire statute which provides that the provisions of § 10a-149a shall control “[notwithstanding any other provision of law to the contrary . . . ,”7

*501“Rep. [Robert] Sorenson: (82nd) Thank you Mr. Speaker. Mr Speaker and ladies and gentlemen. Very simply and basically what this amendment does, it would prohibit any of the individual constituent units within the state university system to prohibit a representative of the Armed Forces of the United States of America who seeks entrance onto any such campus for the purpose of conducting job interviews, and I move adoption of the amendment, Mr. Speaker.
“Acting Speaker [Dean] Markham: The question is on adoption. Will you remark further?
“Rep. Sorenson: (82nd) Yes, Mr. Speaker. Mr. Speaker, let me just start by saying that I reluctantly support the amendment. I do not feel that this type of language belongs in our statutes. I do not feel that we should be interfering in the day-to-day workings of the individual constituent units which is what this is. This is legislative intrusion and also, I’d just like to say that presently, there are no institutions which bar recruiters from the armed forces.
“It seems to me a redundant amendment, but then again, the Senate decided in its wisdom to pass it. The bill is an important bill for many of the individual state universities, so rather than risking the chance of losing the bill because of the amendment, I just would reluctantly ask for adoption of the amendment, Mr. Speaker.
“Acting Speaker Markham: The question is on adoption of Senate Amendment Schedule ‘A.’ Will you remark further?
“Rep. [Vincent] Chase: (120th) Mr. Speaker.
“Acting Speaker Markham: Rep. Vincent Chase.
“Rep. Chase: (120th) Thank you, Mr. Speaker. Very briefly, I support this amendment, and I believe the reason why this came about was that there is one unit that is prohibiting recruitment on the part of the armed services and that is the Hartford Law School of UConn.
“Acting Speaker Markham: Will you remark further on Senate Amendment Schedule ‘A’? Will you remark further? If not, members in favor of Senate Amendment Schedule ‘A,’ please signify by saying aye.” 26 H.R. Proc., Pt. 25, 1983 Sess., pp. 8916-17.

*502The majority opinion effectively deprives the prefatory “notwithstanding” clause of the statute of all meaning. If, as the majority asserts, § 10a-149a requires the law school to ban the military from recruiting on the law school campus because of its hiring practices, the “notwithstanding” clause is superfluous. Consequently, the majority’s interpretation of § 10a-149a fails to adhere to the well settled principle of statutory construction that “[tjhere is a presumption of purpose behind every sentence, clause or phrase in a legislative enactment so that in construing it no part is treated as insignificant and unnecessary.”8 (Internal quotation *503marks omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 407, 528 A.2d 805 (1987); Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 422, 426 A.2d 1324 (1980). I do not suggest that the majority has ignored the “notwithstanding” clause. To the contrary, the majority seeks, at some length, to give it meaning. I believe, however, that these attempts are convoluted and unpersuasive and ignore the most obvious interpretation of the “notwithstanding” clause.

The majority cites three reasons why, despite its “notwithstanding” clause, § 10a-149a does not permit the military to recruit on state campuses: (1) there is no indication in the language of § 10a-149a or in its legislative history that it applies to antidiscrimination statutes; (2) “the provisions of law to the contrary” are only those statutes that are contrary on their face rather than contrary in practice; and (3) because there is an exception in the 1991 Gay Rights Law for Reserve Officers’ Training Corps (ROTC) programs and no such ROTC exception exists in any of the other antidiscrimination laws, “these statutes could not have been the ‘provisions of law to the contrary’ referred to in § 10a-149a” in 1984. I will address each of the majority’s theories seriatim.9

*504The majority first argues that the “notwithstanding” clause does not apply to the antidiscrimination statutes because “[t]here is no indication in the language of [ § 10a-149a] or in its legislative history that the ‘notwithstanding’ clause refers to these statutes.” It is true that there is no specific reference to any particular statute either in the text of § 10a-149a or in its legislative history. As a result, according to the majority, the “notwithstanding” clause does not apply to any statute because there is “no indication” that it applies to any particular statute. This cannot be the case since every phrase in a statute must be given some meaning and without application to other statutes the “notwithstanding” clause has none. See Zichichi v. Middlesex Memorial Hospital, supra, 204 Conn. 407. Furthermore, in the one case in which we have analyzed a “notwithstanding” clause that is in all relevant parts identical to that in § 10a-149a, we held that such a clause “indicates that a [situation] falling within this section that would otherwise be governed by . . . any other provision of the General Statutes, is nonetheless governed, not by those other provisions, but by this provision.” Gifford v. Freedom of Information Commission, 227 Conn. 641, 654, 631 A.2d 252 (1993). We further held in Gifford that the *505clause “notwithstanding any other provision of law to the contrary” is indicative of a legislative intent to create a “broad” rule as opposed to a “notwithstanding” clause that explicitly targets a particular statute at which it is aimed. Id., 655 n.15; see, e.g., General Statutes § 1-19 (c) (“[notwithstanding the provisions of subdivision [1] of subsection [b] of this section”). When no particular statute is referenced by a “notwithstanding” clause, it applies to all other statutes, rather than no other statutes, an application the majority’s first argument would require.

The majority next seeks to give the “notwithstanding” clause some plausible meaning by stating that the “ ‘any other provisions] of law to the contrary’ to which the statute refers are those that are contrary to the substance of [§ 10a-149a], in specific, those statutes that would deny the military the same directory and recruitment opportunities as are provided to private employers.” In other words, the majority concludes that § 10a-149a applies only to any provision of law that would explicitly ban the military from campus when private employers would be permitted access. Because the anti-discrimination statutes only prohibit campus access by the military when they are “applied],” the majority therefore “discern[s]” thatthe “notwithstanding” clause cannot apply to antidiscrimination statutes. The majority provides no support for this determination and I am at a loss as to its derivation. Neither previous decisions of this court, the text of the statute, nor the legislative history provide any support for the novel argument that the phrase “any other provision of law to the contrary” is somehow limited to those provisions that are facially contrary rather than those that are contrary when applied. Moreover, at the time P.A. 84-87 was enacted, there were no statutes that, on their face and without application, “would deny the military the same directory and recruiting opportunities as are provided to *506private employers.” Given this fact, the majority’s argument appears to be that the addition of the “notwithstanding” clause was an attempt by the legislature to guard against some unknown contrary provision of law. Not only would such a speculative and preemptive measure by the legislature be unprecedented, it would be entirely futile as “[o]ne legislature cannot control the exercise of the powers of a succeeding legislature.” (Internal quotation marks omitted.) Patterson v. Dempsey, 152 Conn. 431, 439, 207 A.2d 739 (1965). If a future legislature for some reason sought to deny the military the same recruiting opportunities as a private employer, it could freely do so by simply repealing § 10a-149a.

The last reason asserted by the majority as to why the “notwithstanding” clause does not apply to the anti-discrimination statutes is the most difficult to understand. The majority appears to argue that because the legislature in 1991 excluded ROTC programs from the Gay Rights Law but has never excluded ROTC programs from other antidiscrimination statutes, the legislature, in 1984 when P.A. 84-87 was enacted, must have considered the military to be in compliance with the statutes prohibiting discrimination. Therefore, according to the majority, the “notwithstanding” clause enacted by the legislature in 1984 could not have applied to and does not apply to any antidiscrimination statutes because the legislature never considered the military to be in violation of those statutes. I do not believe that the majority can “assume” that because the 1991 legislature passed a late amendment to the Gay Rights Law that exempted ROTC programs from its coverage that it can be concluded, as the majority says, that the 1984 legislature considered the military’s discriminatory policies to relate only to “bona fide occupational qualifications” that did not violate any antidiscrimination statutes.101 can find no support for the proposition that *507any Connecticut legislature ever considered whether the military’s recruiting decisions were limited to bona *508fide occupational qualifications or that an interpretation of the “notwithstanding” clause in P.A. 84-87 can be based upon the action of the legislature in 1991 in exempting the ROTC from the Gay Rights Law.

I believe that the only logical interpretation of the “notwithstanding” clause is that espoused by the defendants.11 This interpretation involves three steps: (1) the phrase “[notwithstanding any other provision of law to the contrary” presupposes that there are laws that would prevent the military from recruiting on our state’s campuses in the absence of § 10a-149a; (2) the only such laws that exist today or that existed in 1984 that have or had any effect on military hiring policies or practices are those prohibiting discrimination on the basis of age, gender, disability and sexual orientation;12 and (3) therefore, the only interpretation of § 10a-149a *509that gives meaning to the “notwithstanding” clause is that it provides the military with a unique exemption from our antidiscrimination laws for the limited purpose of recruiting.

When the legislature enacted P.A. 83-576 to ensure that the military would be permitted to recruit on state university campuses, the military discriminated in its hiring policies. In fact, the one senator who spoke to oppose specifically the substance of the provision allowing the military access to state campuses in 1983 stated that he opposed such access “because the military is discriminating . . . ,”13 26 S. Proc., Pt. 13, 1983 Sess., p. 4533, remarks of Senator Wilber Smith. In 1983, the legislature acted, in response to a situation at the law school involving the military’s hiring policy toward homosexuals, to “ban [our state universities] from banning military recruiters . . . .” Id., p. 4530, remarks of Senator Thomas Scott. The legislature has taken no action since 1983 evincing a legislative intent to abandon its policy of allowing military recruiters on state *510campuses despite the military’s discriminatory hiring policies. In the absence of such clear direction from the legislature, it is not our prerogative to declare a contrary public policy no matter what a majority of the court might like it to be. HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 659, 668 A.2d 1309 (1995).

I also disagree with the majority’s use in its discussion concerning the ROTC exception to the Gay Rights Law of the canon of statutory construction, expressio unius est exclusio alterius, which may be translated as “the expression of one thing is the exclusion of another.” Black’s Law Dictionary (6th Ed. 1990). I do not dispute that when the legislature excluded the ROTC from the Gay Rights Law at the time of its enactment, the legislature did not also specifically exclude military recruitment. That, however, is not relevant to the determination of whether the preexisting provisions of § 10a-149a will prevail over the “contrary” provisions of the Gay Rights Law because of the “notwithstanding” clause of § 10a-149a. Expressio unius est exclusio alterius, by definition, is applicable only where mention of “one thing” in a statute implies exclusion of another. The exclusion of the ROTC from the Gay Rights Law, however, cannot be said to imply that the “notwithstanding” clause of § 10a-149a has no application to the Gay Rights Law. Military recruitment of students for jobs after graduation has absolutely nothing to do with the existence of a ROTC unit on campus and allowing the establishment of such a unit on campus as an exception to the Gay Rights Law does not logically exclude a statute permitting military recruitment on campus. The fact that the legislature did not duplicate the protections afforded the military by § 10a-149a when it enacted the Gay Rights Law and exempted the ROTC from its operation does not logically lead to the con*511elusion that the legislature intended § 10a-149a to lose its vitality.14

Finally, I disagree with the majority’s argument that the expressed public policy of ehminating discrimination against homosexuals is absolute and overrides all other concerns. The majority correctly asserts that the motivating purpose of the Gay Rights Law is “to protect people from pervasive and invidious discrimination on the basis of sexual orientation.” The majority completely ignores, however, the competing public policy that motivated the legislature to enact P.A. 83-576 and § 10a-149a — that of allowing interested students to acquire information concerning military careers from military personnel on campus to the benefit of the students and the military. See Conn. Joint Standing Committee Hearings, Education, Pt. 2,1984 Sess., pp. 411-17; see also footnote 9 of this opinion. Furthermore, the majority’s public policy argument founders on the ROTC exemption to the Gay Rights Law provided by General Statutes § 46a-81q. It is noteworthy that the ROTC exemption to the Gay Rights Law is emphasized in the majority’s discussion of statutory construction, i.e., expressio unius est exclusio alterius, but is conspicuously absent from the majority’s public policy argument. That is undoubtedly because it is a far greater incursion on the policy of preventing discrimination against homosexuals to permit the ROTC to establish a military unit on campus than it is to allow the legal arm of the military to conduct interviews at the law school one or two days a year. Yet the former has *512legislative sanction. Given the statutory ROTC exemption from the Gay Rights Law, it is difficult to see how the majority’s public policy argument supports its position. The legislature’s enactment of an exemption to the Gay Rights Law for the ROTC, an exemption that permits discrimination against gay men and lesbians that is similar in kind but greater in degree than that permitted by the recruitment provisions of § 10a-149a, undercuts any such argument.

In sum, I find no support for the majority’s construction of § 10a-149a. I also cannot believe that the legislature could make a U-tum on a controversial subject from one year to the next apparently without a single legislator expressing an awareness of the change of direction. Further, it strains credulity (let alone the tenets of statutory construction) to believe that the legislature would enact the Gay Rights Law without being cognizant of the existence and import of the “notwithstanding” clause of § 10a-149a. See Gifford v. Freedom of Information Commission, supra, 227 Conn. 654-55 and n.15 (“notwithstanding” clause in statute means that that statute prevails over other statutes that would otherwise apply).

If the legislature wishes to ban military recruiters from state campuses, that is its prerogative, not ours. I respectfully dissent.

General Statutes § 1-19 provides in relevant part: “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of ... (11) names or addresses of students enrolled in any public school or college without the consent of each student whose name or address is to be disclosed who is eighteen years of age or older and a parent or guardian of each student who is younger than eighteen years of age, provided this subdivision shall not be construed as prohibiting the disclosure of the names or addresses of students enrolled in any public school in a regional school district to the board of selectmen or town board of finance, as the case may be, of the town wherein the student resides for the purpose of verifying tuition payments made to such school . . . .” The majority hypothesizes that “the ‘notwithstanding’ clause may have been added in 1984 in order to protect against other statutes dealing with directory information . . . .” The text of § 10a-149a plainly refutes this hypothesis in that it specifically provides that the provision of directory information is subject to the limitations of § 1-19 — the only statute addressing the provision of directory information by schools.

The concurrence seems to advise that the debate that I really should look at occurred in 1991. The 1991 legislative debate regarding discrimination against homosexuals does not change the fact that the 1984 legislature expressed no intent to eliminate the military’s unconditional access to campuses for recruitment purposes, access that had been granted only the previous year. If a substantial change in the law had been intended from 1983 to 1984, the relevant debate would have occurred in 1984, not in 1991.

House Bill No. 5371, which eventually became § 10a-149a, was modeled after a 1983 New Hampshire bill provided to the chairpersons of the education committee by House Majority Leader John Groppo. That New Hampshire bill provided: “Duty to Provide Directory Information and Access. Notwithstanding any other provision of law to the contrary, all public high schools and all institutions within the state university system and all private high schools, colleges and universities which receive state funds shall provide the same directory information and on-campus recruiting opportunities to representatives of state or United States armed services as they offer to nonmilitary recruiters or commercial concerns.” N.H. House Bill No. 827.

Interestingly, the only alterations made to the New Hampshire bill by our legislature involved access to directory information and the types of educational institutions to which the Connecticut bill would apply.

In the education committee’s written report, under the heading, “Reasons for Bill,” the committee stated only: “This bill would require all public high schools, state institutions of higher education and all private high schools and colleges which receive state funds to provide [United States] and state military recruiters with the same directory information and on-campus recruiting opportunities that they offer other recruiters. The law now prohibits the boards of trustees of the state’s higher education constituent units from denying [United States] military recruiters access to campuses to conduct job interviews. Current law is silent on the responsibilities of private institutions and public high schools.” Education Committee Report No. 205, Concerning House Bill No. 5371, entitled “An Act Providing Military Recruiters Access to Schools and to Directory Information” (March 29,1984).

Not mentioned as reasons for the bill were the curtailment of military recruitment opportunities uni il the military complied with antidiscrimination laws or the termination of the military’s recently granted “unconditional access” to state campuses for recruitment despite discriminatory hiring policies. Those reasons, noted in the majority opinion, are purely products of the majority’s vision of appropriate public policy.

The concurrence claims that my concern over the majority’s conclusion that a substantial policy change occurred in 1984 without being noticed by the legislature is “without substance.” The concurrence claims, with its self-proclaimed “clear understanding of the various statutes and their respective dates of passage,” that, in 1984, “§ 10a-149a had no practical effect on the statutes governing the law school . . . because at that time employers were free to discriminate on the basis of sexual orientation . . . .” This assertion suffers from both factual inaccuracy and a “fundamental misunderstanding,” to borrow a phrase from the concurrence, of my argument. The factual inaccuracy is that § 10a-149a did have a practical effect on the law school because it prohibited the law school from excluding the military based on its discriminatory practices as to homosexuals, among others, as it had done the previous year. See 26 S. Proc., Pt. 13, 1983 Sess., p. 4530, remarks of Senator Thomas Scott (P.A. 83-576 enacted in response to law school’s banning of military). The concurrence’s “fundamental misunderstanding” is that it focuses on the legality of discrimination on the basis of sexual orientation in 1984 and appears to assert that because it was legal to discriminate based on sexual orientation in 1984, the “notwithstanding” clause was without effect in 1984.1 nowhere argue that the terms of P.A. 84-87 directly address discrimination on the basis of sexual orientation. Rather, the “notwithstanding” clause in 1984 allowed the military to recruit on state campuses despite noncompliance with any antidiscrimination statutes that were operative in 1984 and it presently allows the military to recruit on state campuses despite noncompliance with any existing antidiscrimination statutes, including the Gay Rights Law. If the legislature in 1991 had intended something different, it would have been a simple matter to repeal or revise § 10a-149a.

The entire Senate debate on P.A. 83-576 pertaining to military access provides as follows:

"The Clerk: Yes, Mr. President. Clerk has Senate Amendment Schedule ‘A,’ LCO No. 6966, Senator Scott, I believe.
“The Chair: Senator Scott.
“Senator [Thomas] Scott: Thank you very much, Mr. President. Very briefly, the amendment which I am about to offer has not had a public hearing and has not been considered in that capacity. However, the issue which this amendment addresses is something that’s relatively recent in the making and that is the situation at UConn Law School where the faculty acting in its capacity as really the overseers of outside activity decided for various reasons that military recruiters should be banned from our University. This is but the first step [i]f this is allowed to continue. If you go to Southern Connecticut State University, Eastern Connecticut State University, Central Connecticut, so on and so forth, I think we’ve got to stop them dead in their tracks. I think their efforts on behalf of banning military recruiters was frankly shortsighted and uncalled for. Military recruiters, particularly in this day and age of the voluntary military, when our commitment to the military in terms of our people signing up is below what is necessary, should not be discouraged, and I think that we ought to ban them from banning military recruiters and military recruiters ought in turn to be treated like anybody from a corporation or anybody else who wishes to come to a campus and talk to students about job opportunities, and that’s really what we’re talking about here and I would urge a favorable vote.
“The Chair: You move for adoption of this amendment?
“Senator Scott: Yes, Sir, and I would ask for a roll call as well.
“The Chair: Do you wish to remark further? Senator Casey.
“Senator [Steven] Casey: Thank you very much, Mr. President. I ask my colleagues to oppose this amendment. The reasons I give are that we are overriding the decision of the Board of Trustees without a basic hearing and I think this is something that is very important. I think it deserves a public hearing and I think next session would be the ideal time to do it. We are asking, with this amendment, to override the Board of Trustees and I think that is something that is basically wrong without at least a public hearing. I ask my colleagues to oppose this.
“The Chair: Clerk, please make a ... do you wish to be heard, Senator Skowronski?
“Senator [Eugene] Skowronski: Thank you, Mr. President. With due respect to the Chairman of the Education Committee, I rise to support the amendment and would like to commend Senator Scott for introducing it. I think we ought to send a message to the Law School that the military ought *500not to be treated differently than any other group. Part of our country. They have a legitimate place. Students may wish to get information from them and they have a right to provide that information. I don’t feel as though I need a public hearing on this or to have the Board of Governors or anyone else really deal with this. We’re the Assembly of the people. I think it’s a very clearcut issue. I would urge its adoption.
“The Chair: Senator Morano.
“Senator [Mary] Martin: I concur with the remarks made by Senator Skowronsld and I think that we should send a message to the trustees. I think too many people are jumping on bandwagons these days.
“The Chair: Senator Morano. Sorry about that, Senator. I didn’t see Senator Martin rise. She’s pretty quick on that.
“Senator [Michael] Morano: I was shocked. I thought I was wearing somebody’s skirt.
“The Chair: Well, I don’t want anything that extreme happening to you.
“Senator Morano: Mr. President, I rise to support the amendment. The University of Connecticut is a land grant college. There are ROTC courses there and I feel that any school that has ROTC has the right to have recruiters on campus. For that reason, I support Senator Scott’s amendment.
“The Chair: Senator Schneller.
“Senator [Richard] Schneller: Mr. President, through you a question to Senator Casey. Senator Casey, has the military been banned from any of our institutions of public higher education?
“The Chair: Senator Casey.
“Senator Casey: Through you, Mr. President, I would like to give an unofficial answer to that question by the Majority Leader. As far as I’m aware, the Law School has prohibited certain military service recruiters from recruiting on campus due to their discrimination against homosexuals.
“The Chair: Is there a rejoinder, Senator Morano?
“Senator Morano: Mr. President and Members of the Circle, I think that answer’s enough for anybody to vote for this amendment.
“The Chair: Do you wish to respond further? Senator Wilber Smith.
“Senator Smith: Yes, Mr. President. On that last remark, I just want to make it plain that it’s because the military is discriminating and that I am opposed to the amendment.
“The Chair: Do you wish to remark further? Clerk, please make an announcement for an immediate roll call.” 26 S. Proc., Pt. 13, 1983 Sess., pp. 4529-33.
The entire House debate on P.A. 83-576 pertaining to military access provides as follows:

If not for the “notwithstanding” clause as well as the previous year’s grant of unconditional access for recruitment purposes, I would agree with the majority that the military should be treated exactly like any other employer. In order to provide meaning to the “notwithstanding” clause and to reconcile the legislative actions in 1983 and 1984 with their respective legislative histories, however, I would interpret the language in § 10a-149a granting the military “the same . . . on-campus recruiting opportunities,” to mean that the military, given its well documented practices, should nonetheless be allowed to recruit on state campuses. This interpretation is the only one that provides meaning to the legislation and the legislative history in question.

The concurrence makes no attempt to give the “notwithstanding” clause any meaning. The concurrence argues that, by enacting the “notwithstanding” clause, “the legislature was simply attempting to level the playing field *503between nonmilitary employers and the military Section 10a-149a would accomplish that objective without the “notwithstanding” clause. The concurrence, therefore, treats the “notwithstanding” clause as superfluous. Such a construction defies well settled principles of statutory construction.

Before discussing the majority’s interpretation of the “notwithstanding” clause, I find it necessary to challenge the majority’s characterization of that clause as a “proviso” or an “exception” to the Gay Rights Law. The majority utilizes that characterization in order to place upon the defendants “ ‘the burden of proving that they come within the limited class for whose benefit [the law] was established’ ” and to claim that the “notwithstanding” clause in this case should be “strictly construed with doubts resolved in favor of the general rule . . . .’’As the majority asserts, the Reserve Officers’ Training Corps provision in the Gay Rights Law is an “exception” in that it is a provision that restricts its general applicability. See 2A J. Sutherland, supra, § 47.11. The “notwithstanding" clause, however, does not represent *504a specific exception to the Gay Rights Law but rather a legislative pronouncement within § 10a-149a that any conflict between § 10a-149a and any other law will be resolved in favor of § 10a-149a. The “notwithstanding” clause is more analogous to a general saving statute that “save[s] rights and remedies except where a subsequent repealing act indicates that it was not the legislative intention that particular rights and remedies should be saved.” Id., § 47.13. This is a situation where one statute provides for the resolution of conflicts between it and other statutes, not a situation where there is a specific exemption within a statute to that statute’s general applicability. Moreover, in the only other case in which this court has interpreted a “notwithstanding” clause in a statute, not only did we not “strictly construe” that clause as the majority does in this case, but we interpreted it broadly. See Gifford v. Freedom of Information Commission, 227 Conn. 641, 655 n.15, 631 A.2d 252 (1993). Therefore, I believe that the majority’s application of the presumptions and burdens associated with exceptions and provisos is simply wrong.

The only discussion in the legislative record pertaining to the ROTC exception to the Gay Rights Law occurred in the House of Representatives. *507That discussion, in relevant part, occurred as follows:

“Rep. [Richard] Tulisano: (29th) Mr. Speaker, the bill deals with ensuring that the provisions of Section[s] 1 through 17 of the file copy do not apply to conduct, the administration of ROTC programs established pursuant to federal law.
“I move [for] its adoption.
“Deputy Speaker [Dean] Markham: Will you comment? Representative Ward of the 86th.
“Rep. [Robert M.] Ward: (86th) Thank you, Mr. Speaker. Mr. Speaker, I will support the amendment. I’m a little troubled, though, because when I raised this very issue in the Judiciary Committee I was told it’s really no concern. It’s kind of pre-empted by federal. I didn’t think it made a lot of sense then and I thought that in fact the bill would have resulted in probably the elimination of every ROTC program in this state, pulling away the kid’s scholarships and closing the programs.
“I’ll support, this bill so that that won’t occur .... I can’t help but wonder what other things we’re assured, however, are no real problem in the bill will turn out to be a problem.
“Rep. Tulisano: (29th) Through you, Mr. Speaker. That’s a question, I’ll bet. No? Come on.
“Deputy Speaker Markham: Will you remark further on the amendment? Will you remark further? Representative Wollenberg of the 21st.
“Rep. [William L.] Wollenberg: (21st) Yes, thank you, Mr. Speaker, just shortly and to follow up on what Representative Ward said at the end of his discussion was I wonder too what we haven’t foreseen in this bill as far as funds are concerned. Representative Tulisano jumps to the challenge, but that’s one reason when you have a complex bill like this and people are looking at it and you’re trying to discern what things may or may not be affected by it.
“This one comes up. It strikes you immediately. There may be many, many others that have not stricken us that will come up and many people will suffer because of it. I think it needs a longer look than this. I think we proved the case by this one incident and we better be very, very cautious. Thank you.” 81 H.R. Proc., Pt. 7, 1991 Sess., pp. 2666-67.

Unlike the majority, I am unable to discern from this limited discussion that the legislature considered the military to be in compliance with all other antidiscrimination legislation either in 1991 or at any other point in time. The only insight I glean from this discussion is that, in 1991, the Judiciary Committee, or at least some members thereof, believed that the Gay Rights Law would not apply to the military based on the federal preemption doctrine. See Chappell v. Wallace, 462 U.S. 296, 302, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983) (Congress enjoys plenary constitutional authority over military). The preemption argument is not raised by the defendants in this case and the court need not decide it.

The majority asserts that, according to the defendants, the law school must permit the military to recruit on campus, even though this would result in the school violating the Gay Rights Law. This characterization of the defendants’ argument is circular and assumes the answer to the question at issue. Certainly, if the defendants were correct, as long as the “notwithstanding” clause exists, the school would not be violating the Gay Rights Law because military recruitment would not be subject to the Gay Rights Law.

For instance, in 1984, General Statutes § 46a-72 made discrimination on account of gender, disability and age by state agencies that provide employment referrals illegal. If such laws were meant to apply to the military, the military, with its long history of discriminatory practices, would have had to comply with all Connecticut antidiscrimination laws before being able to recruit on state campuses in 1984. Clearly, that was not the intent of the legislature. See Conn. Joint Standing Committee Hearings, Education, Pt. 2, 1984 Sess., p. 411, remarks of Commissioner Stanley Pac (“What they really are looking for here is the same ability to go on and talk to the school kids as other recruiters, and I think it’s in the interest of educators, of the military to improve our military. I think it would help give us a strong military, a motivated military and an enlightened one. It would lift up the level of that same military.”); id., p. 412, remarks of Lieutenant Robert Frank (“[wjejust want to make the military opportunities available . . . asaviable career alternative and option”); id., p. 417, remarks of Staff Sergeant Mark Gentile (“[i]f we are denied access to campuses and access to directory information, it reduces our recruiters to going to McDonald’s to try and talk to young people”).

Section 46a-72 is parallel to those portions of the Gay Rights Law at issue *509here. It provides in relevant part: “Discrimination in job placement by state agencies prohibited, (a) All state agencies, including educational institutions, which provide employment referrals or placement services to public or private employers, shall accept job orders on a nondiscriminatory basis.

“(b) Any job request indicating an intention to exclude any person because of race, color, religious creed, sex, age, national origin, ancestry, mental retardation, learning disability or physical disability, including, but not limited to, blindness shall be rejected, unless it is shown by such public or private employers that such disability prevents performance of the work involved.”

General Statutes § 46a-81j provides in relevant part: “Sexual orientation discrimination: Job recruitment and placement services provided by state agencies, (a) All state agencies, including educational institutions, which provide employment referrals or placement services to public or private employers, shall accept job orders on a nondiscriminatory basis.

“(b) Any job request indicating an intention to exclude any person because of sexual orientation shall be rejected.”

Senator Casey also spoke in opposition to the amendment requiring military access because of his belief that a public hearing should be held on the matter. 26 S. Proc., Pt. 13, 1983 Sess., p. 4531.

The majority relies on the decision of the New York Court of Appeals in Lloyd v. Grella, 83 N.Y.2d 537, 634 N.E.2d 171, 611 N.Y.S.2d 799 (1994), to support its conclusion. That case is inapposite, however, because the meaning of the “notwithstanding” clause in the statute at issue there was never discussed. Moreover, the Lloyd court did not face the obstacle that the majority does in the present case because the New York legislature had not granted the military unconditional access to state campuses the year before it enacted the statute at issue.