UL Petition Final

8/21/2019 UL Petition Final

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No. ______

IN THE

_____________

U.L., individually and as father and natural

guardian of E.L., an infant under the age of 18 years,

Petitioner,

v.NEW Y ORK STATE A SSEMBLY , NEW Y ORK STATE

SENATE, SHELDON SILVER, in his official capacity as

Speaker of the New York State Assembly, JEFFERY

K LEIN, in his official capacity as President Pro

Tempore of the New York State Senate and as

Senate Independent Democratic Conference Leader,

DEAN SKELOS, in his official capacity as President Pro

Tempore of the New York State Senate, and the

STATE OF NEW Y ORK ,

Respondents.

On Petition for a Writ of Certiorari to the UnitedStates Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

S ARAH M. SHALF Counsel of Record

EMORY L AW SCHOOL S. CT. A DVOCACY PROGRAM 1301 Clifton Road

Atlanta, Georgia 30322(404) [email protected]

ELLIOT P ASIK 366 Pearsall Avenue,Suite 5Cedarhurst, NY 11516(516) 371-2800

M ARK GOLDFEDER Of Counsel


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QUESTIONS PRESENTED

I. Whether the 14th Amendment’s EqualProtection clause requires state childprotection laws to apply equally to public andprivate school children, who are similarlysituated with respect to child protection laws?

II. Whether the 14th Amendment's Due Process

clause requires that parents not be forced tochoose between public schools that protectchildren's safety, and private (includingreligious) schools that provide the type ofeducation that the parents desire.


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TABLE OF CONTENTS

QUESTIONS PRESENTED .................................... i

TABLE OF CONTENTS .......................................... ii

TABLE OF AUTHORITIES .................................... v

OPINIONS BELOW ................................................. 1

STATEMENT OF JURISDICITION ....................... 1

CONSTITIUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................................... 1

STATEMENT OF THE CASE ................................. 4

Child Protection Laws ................................... 4

New York’s Project SAVE ............................. 8

REASONS FOR GRANTING THE WRIT .............. 9

I. The Second Circuit’s DecisionConflicts With Supreme CourtPrecedent Requiring EqualProtection of the Laws forPublic and Private SchoolChildren Who are SimilarlySituated with Respect to ChildProtetion Laws ......................................... 9

A. As it Relates to the Provision

of Public Services and Safety

Measures, Students in Public

and Nonpublic Schools are

Similarly Situated. ........................... 9

B. Child Protection Laws, Like

Public Services, Are Equally


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Applicable to Both Publicand Private School Children. ........... 12

C. This Court Should Grant the

Writ to Resolve a Disparity

Among the States as to

Whether Child Protection

Laws Apply Equally to

Private and Public School

Children ............................................ 15

D.

There Exists a Severe Split of

Authority on the Issue of the

Ministerial Exception to

Generally Applicable Laws

Which is Directly Related to

the Hiring Procedures at

Issue in this Case. ........................... 16

II. The Second Circuit’s DecisionConflicts with Supreme CourtSubstantive Due ProcessPrecedent Maintaining the

Right of Parents to SendChildren to Nonpublic SchoolsBy Forcing Them to ChooseBetween This Right and theSafety of their Children. .......................... 18

CONCLUSION ......................................................... 20

APPENDIX ............................................................... 1a

Appendix A — Summary Order OfThe United States Court Of

Appeals For The Second Circuit,Dated February 5, 2015 ................................ 1a


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Appendix B — Opinion And OrderOf The District Court For TheSouthern District Of New York,Dated January 29, 2014 ................................ 4a


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TABLE OF AUTHORITIES

Cases

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen,

392 U.S. 236 (1968) ................................................ 11

Binnhamton City Sch. Dist. v. Peacock ,

33 A.D.3d 1074 (3rd Dept. 2006) ........................... 14

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) .................................................. 9

Everson v. Bd. of Educ. of the Twp. of Ewing ,

330 U.S. 1 (1947) .............................................. 10, 11

Finlay v. Finlay , 240 N.Y. 429 (1925) ...................... 14

Hosanna-Tabor Evangelical Lutheran Church

& Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) ............. 17

Lemon v. Kurtzman, 403 U.S. 602 (1971) .................. 4

McGowan v. Maryland , 366 U.S. 420 (1961) ........... 11

Meyer v. Nebraska, 262 U.S 390 (1923) .................. 18

People v. Diack , 974 N.Y.S.2d 235

(App. Term 2013) ................................................... 13

Pierce v. Soc’y of Sisters , 268 U.S. 510 (1925) ..... 5, 18

Prince v. Massachusetts ,

321 U.S. 158 (1944) ...................................... 4, 11, 14

Reynolds v. United State s, 132 S.Ct. 975 (2012) ..... 12


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Veronica Sch. Dist. 47J v. Acton,515 U.S. 646 (1995) ................................................ 14

Villarin v. The Rabbi Haskel Lookstein School ,

96 A.D.3d 1 (N.Y. Sup. Ct. 2012) .......................... 16

Walz. v. Tax Comm’n of City of New York ,

397 U.S. 644 (1970) ................................................ 11

Wisconsin v. Yoder , 406 U.S. 205 (1972) ........... 18, 19

Statutes

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1291 .......................................................... 1

28 U.S.C. § 1331 .......................................................... 1

42 U.S.C. § 16901 ...................................................... 12

42 U.S.C. § 16962(b)(2) ............................................... 7

N.Y. CLS Correct, Art. 6-C ....................................... 12

N.Y. Educ. Law § 2590-h(20) ...................................... 7

N.Y. Educ. Law § 305(30) ........................................... 7

N.Y. Penal Law § 65.10 (McKinney) ........................ 12

N.Y. Public Health Law §§ 2899,2899-a .................... 7

N.Y. Vehicle & Traffic Law § 509-d ............................ 7

Section 2590-h(20) of the New York

Education Law ......................................................... 2


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Section 305(30)(a) of the New YorkEducation Law ......................................................... 3

The National Child Protection Act, 42 U.S.C. Sects.

5119a, et seq. (enacted 1993, amended 1998) ........ 6

Other Authorities

CHAROL SHAKESHAFT, EDUCATOR SEXUAL

MISCONDUCT: A S YNTHESIS OF EXISTING

LITERATURE (Hofstra Univ. and

Interactive, Inc., 2004)......................................... 5, 7

Christopher J. Klicka, Decisions of the

United States Supreme Court Uphold Parental

Rights as “Fundamental” , HOME SCH.

LEGAL DEF. A SS’N, Oct. 27, 2003,

http://www.hslda.org/docs/nche

/000000/00000075.asp#18 ...................................... 19

Donal M. Sacken, Regulating Nonpublic

Education: A Search for Just Law and

Policy, 96 A M. J. EDUC. 394 (1988) .......................... 6

Eric A. DeGroff, State Regulation of Nonpublic

Schools: Does the Tie Still Bind?, 2003 BYU

Educ. & L.J. 363 (2003) ..................................... 5, 15

IRS Information and Reporting Services,

Education Statistics for New York State,

NYSED.GOV (Jun. 18, 2015),

http://www.p12.nysed.gov/irs/statistics/public/ ...... 8


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James G. Dwyer, The Children We Abandon,74 NORTH C AROLINA L. REV. 1321 (1996) .... 6, 10, 16

Jennifer Park, Education Week Survey ,

A CROSS THE N ATION, Apr. 30, 2003,

http://www.edweek.org/legacymedia/ew/vol-

22/gallery/17webtable.pdf ..................................... 15

JEWISH BD. OF A DVOCATES FOR CHILDREN, INC.,

POSITION P APER TO THE NEW Y ORK LEGISLATURE

A DVOCATING CHILD PROTECTION L AWS FORNONPUBLIC SCHOOLS (2009). .................................. 5

Mandatory Reporting of Child Abuse and

Neglect 2013 Introduced State Legislation,

N AT’L CONF. OF ST. LEGISLATURES, Sept. 23,

2014, http://www.ncsl.org/research/human-

services/redirect-mandatory-rprtg-of-child-

abuse-and-neglect-2013.aspx ................................ 16

N AT’L CTR. FOR EDUC. STATISTICS, Characteristics ofPrivate Schools in the United States: Results

From the 2011-12 Private School Universe

Survey (U.S. Dep’t of Educ., 2013)

http://www2.ed.gov/about/offices/list/oii/

nonpublic/statistics.html ......................................... 9

Senate Coalition Announces Passage of Bills to

Close Dangerous Loopholes in Sex Offender

Laws , NEW Y ORK STATE SENATE, Feb. 26, 2015,

http://www.nysenate.gov/press-release/senate

-coalition-announces-passage-bills-close-

dangerous-loopholes-sex-offender-laws ................ 13


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Stephen A. Siegel, The Origin of the CompellingState Interest Test and Strict Scrutiny , 48

THE A M. J. OF LEGAL HIST 355 (2006) ................... 19

The NYS Senate Coalition, Keeping Our

Children Safe From Sex Offenders (2015),

http://www.nysenate.gov/files/

pdfs/Keeping_our_Children_Safe.pdf ............. 13, 14

U.S. DEP’T OF EDUC., STATE REGULATION OF

PRIVATE SCHOOLS (2009) .................................. 15, 16

W. COLE DURHAM AND ROBERT SMITH,

RELIGIOUS ORGANIZATIONS AND THE L AW

§ 9.9 (2d ed. 2010), Westlaw (database

updated 2015) ........................................................ 17

Rules

S. Ct. R. 13.3 ................................................................ 1

S. Ct. R. 13.5 ................................................................ 1

Title 24, Rules of the City of New York,

Sect. 43.13 ................................................................ 8

Title 24, Rules of the City of New York,

Sect. 47.15 ................................................................ 8

Constitutional Provisions

U.S. Const. amend. XIV .................................... 2, 9, 18


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PETITION FOR A WRIT OF CERTIORARI

U.L., individually and as father and naturalguardian of E.L., an infant under the age of 18 years,respectfully petitions for writ of certiorari to review a

judgment of the United States Court of Appeals forthe Second Circuit.

OPINIONS BELOW

The summary order of the United States Court of

Appeals for the Second Circuit is reported at 592Fed. Appx. 40, and is reprinted in Appendix A, 2a-4a.The opinion and order of the District Court for theSouthern District of New York is reported at 2014U.S. Dist. LEXIS 11215, and reprinted in AppendixB, 5a-13a.

STATEMENT OF JURISDICTION

The District Court for the Southern District ofNew York had jurisdiction under 28 U.S.C. § 1331.The United States Appeals Court had appellate

jurisdiction under 28 U.S.C. § 1291, and filed itsopinion on February 5, 2015. This Court has

jurisdiction under 28 U.S.C. § 1254(1) and S. Ct. R.13.3. This Court granted an extension to file on April22, 2015 under S. Ct. R. 13.5, extending the time tofile this petition until June 22, 2015.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1 of the Fourteenth Amendment to the

United States Constitution provides, in relevantpart:


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All persons born or naturalized inthe United States, and subject to the

jurisdiction thereof, are citizens of theUnited States and of the state whereinthey reside. No state shall make orenforce any law which shall abridge theprivileges or immunities of citizens ofthe United States; nor shall any statedeprive any person of life, liberty, orproperty, without due process of law;

nor deny to any person within its jurisdiction the equal protection of thelaws.

U.S. Const. amend. XIV, §1

Section 2590-h(20) of the New York EducationLaw provides in relevant part:

The chancellor shall have thefollowing powers and duties as the

superintendent of schools and chiefexecutive officer for the city district,which the chancellor shall exercise topromote an equal educationalopportunity for all students in theschools of the city district, promotefiscal and educational equity, increasestudent achievement and schoolperformance and encourage localschool-based innovation, including thepower and duty to: ensure compliancewith qualifications established for allpersonnel employed in the city district,including the taking of fingerprints as


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a prerequisite for licensure and/oremployment of such personnel. Everyset of fingerprints taken pursuant tothis subdivision shall be promptlysubmitted to the division of criminal

justice services where it shall beappropriately processed. Furthermore,the division of criminal justice servicesis authorized to submit the fingerprintsto the federal bureau of investigation

for a national criminal history recordcheck.

Section 305(30)(a) of the New York EducationLaw provides in relevant part:

The commissioner of education ishereby charged with the followingpowers and duties…The commissioner,in cooperation with the division ofcriminal justice services and in

accordance with all applicableprovisions of law, shall promulgaterules and regulations to require thefingerprinting of prospectiveemployees, as defined in section elevenhundred twenty-five of this chapter, ofschool districts, charter schools andboards of cooperative educationalservices and authorizing thefingerprinting of prospective employeesof nonpublic and private elementaryand secondary schools, and for the useof information derived from searches ofthe records of the division of criminal


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justice services and the federal bureauof investigation based on the use ofsuch fingerprints. The commissionershall also develop a form for use byschool districts, charter schools, boardsof cooperative educational services, andnonpublic and private elementary andsecondary schools in connection withthe submission of fingerprints thatcontains the specific job title sought

and any other information that may berelevant to consideration of theapplicant. The commissioner shall alsoestablish a form for the recordation ofallegations of child abuse in aneducational setting, as requiredpursuant to section eleven hundredtwenty-six of this chapter.

STATEMENT OF THE CASE

Child Protection Laws

This Court has held that “democratic society […]rests upon the healthy, well-rounded growth ofyoung people into full maturity as citizens.” Prince v.Massachusetts , 321 U.S. 158, 168 (1944). In otherwords, the Court considers the health and safety ofchildren to be of the utmost importance. As a result,the “State always has a legitimate concern formaintaining minimum standards in all schools itallows to operate.” Lemon v. Kurtzman, 403 U.S.602, 613 (1971) (emphasis added). Despite the

importance of protecting the health and safety ofchildren, it is estimated that ten percent of schoolchildren from kindergarten through twelfth gradeare victims of educator sexual assault. CHAROL


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SHAKESHAFT, EDUCATOR SEXUAL MISCONDUCT: A S YNTHESIS OF EXISTING LITERATURE at 20 (HofstraUniv. and Interactive, Inc., 2004).

In response to disturbing estimates of sexualabuse in schools, Congress enacted the NationalChild Protection Act with the intent to “encouragethe States to adopt legislation requiring backgroundchecks for child care providers through the FBIcriminal history records system.” JEWISH BD. OF

A DVOCATES FOR CHILDREN, INC., POSITION P APER TO

THE

NEW

Y ORK

LEGISLATURE

A DVOCATING

CHILD

PROTECTION L AWS FOR NONPUBLIC SCHOOLS at 3(2009). A survey released in 2003 found that 42 ofthe 50 states—following the intent of Congress inenacting the National Child Protection Act—requirebackground checks of all employees in public schools.

Additionally, numerous states currently requirebackground checks and fingerprinting of employeesat both public and nonpublic schools, including

Alabama, California, Florida, Illinois, Louisiana,Maryland, Massachusetts, Michigan, Minnesota,

Ohio, Pennsylvania, Rhode Island, and Virginia. Id at 4. These states constitute over 40% of the USpopulation. Id .

This Court has affirmed the right of states toregulate nonpublic education. See Pierce v. Soc’y ofSisters , 268 U.S. 510 (1925); see also Eric A. DeGroff,State Regulation of Nonpublic Schools: Does the TieStill Bind?, 2003 BYU Educ. & L.J. 363 (2003)(discussing the Court’s history of affirming the rightof states to regulate nonpublic education); Donal M.Sacken, Regulating Nonpublic Education: A Searchfor Just Law and Policy, 96 A M. J. EDUC. 394 (1988)(discussing the Court’s history of affirming the rightof states to regulate nonpublic education). Although


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courts have consistently upheld laws deferring toindividual states approval of teacher certification,core subject instruction, attendance for privateschools, and other non-health-or-safety relatedmatters, there remains enormous disparity in theapplication of health and safety-related regulationsto public schools versus private schools. See JamesG. Dwyer, The Children We Abandon, 74 NORTHC AROLINA L. REV. 1321 (1996) (footnotes omitted).This has led to continual frustration and recurrent

litigation. Sacken at 395. The majority of states donot mandate equal protections for private schoolchildren by requiring the same employee backgroundchecks and fingerprinting that they do for publicschool children. Id . This Court must grant the writ toend the confusion and litigation related to stateregulation of safety and security in nonpublic schoolsto ensure the equal protection of all childrenregardless of the type of educational institution theyattend.

Federal law and policy favor school employee

background checks. The National Child Protection Act, 42 U.S.C. Sects. 5119a, et seq. (enacted 1993,amended 1998). In fact, The National ChildProtection Act gives qualifying schools and youthgroups to access the FBI national criminal historydatabase and empowers state legislatures to requirethem to. Id . The Schools Safely Acquiring FacultyExcellence Act (contained within the Adam WalshChild Protection and Safety Act), signed into law onJuly 27, 2006, provides that the U.S. AttorneyGeneral "shall, upon request of the chief executiveofficer of a State, conduct fingerprint-based checks ofthe national crime information databases . . .pursuant to a request submitted by . . . a private or


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public elementary school, a private or publicsecondary school, a local educational agency, or Stateeducational agency in that State, on individualsemployed by, under consideration for employmentby, or otherwise in a position in which the individualwould work with or around children in the school oragency." 42 U.S.C. § 16962(b)(2). Under this law,State Governors are granted the power to authorizenonpublic school background checks. The U.S.Education Department report, "Educator Sexual

Misconduct: A Synthesis of Existing Literature"(June 2004), received national media attention,particularly for its finding that nearly 9.6% of

American students, in their K-12 years, are victimsof sexual misconduct. Id at 20. The 147-pageCongress-mandated report recommends fingerprint-based criminal background checks for all schoolpersonnel. SHAKESHAFT at 47-48.

Legally mandated employee fingerprinting is wellestablished in New York. New York City publicschool employees have been fingerprinted since 1974.

N.Y. Educ. Law § 2590-h(20). Prospective Statepublic school employees have been subject tomandatory fingerprinting since 2001. N.Y. Educ.Law § 305(30). Child day care center workers mustbe fingerprinted. N.Y. Soc. Serv. Law § 390-b.Licensed school bus drivers must be fingerprinted.N.Y. Vehicle & Traffic Law § 509-d. Nursing homeworkers must be fingerprinted. N.Y. Public HealthLaw §§ 2899,2899-a. New York City child day carecenters are required to have a permit issued by theN.Y.C. Health Department, and must fingerprintand background check their current and prospectiveemployees under Title 24, Rules of the City of New

York, Sect. 47.15. Effective September 1, 2008, all


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religious child day care centers are required tofingerprint their current and prospective employees.Title 24, Rules of the City of New York, Sect. 43.13.

The common thread of the background checkstatutes and rules is that where vulnerablepopulations are involved, the workers need to bescreened to ensure security. Fingerprinting andbackground checks have screened out manydangerous persons, and have therefore preventedmany crimes that would have been inflicted on

children and other vulnerable people.

New York’s Project SAVE

In 2001, the New York Legislature enactedProject SAVE (Safe Schools Against Violence inEducation), which consists of child protection lawsthat are only mandatory in public schools. Pet.

App’x. 6. These laws require, inter alia,fingerprinting and criminal background checks forprospective public school employees, reportingoccurrences of child abuse in public schools to law

enforcement, and the completion of coursework bypublic school administrators and teachers inidentifying and reporting child abuse. Id . None ofthese requirements apply to nonpublic schools. Id .

For the 2014-2015 school year, New York Statehad 1,768 non-public schools, with 815 in New YorkCity alone. IRS Information and Reporting Services,Education Statistics for New York State,NYSED.GOV (Jun. 18, 2015),http://www.p12.nysed.gov/irs/statistics/public/. In thefall of 2011, it was estimated that there were 30,861private elementary and secondary schools in theUnited States, made up of 4,494,845 students and420,880 full-time equivalent teachers. N AT’L CTR.


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FOR EDUC. STATISTICS, Characteristics of PrivateSchools in the United States: Results From the 2011-12 Private School Universe Survey (U.S. Dep’t ofEduc., 2013) http://www2.ed.gov/about/offices/list/oii/nonpublic/statistics.html. Of those schools,68.4% were religious private schools. Id . Theseschools represent hundreds of thousands of studentsaround the country who are receiving unequalprotection from their state government and are beingplaced daily into potential harm's way.

REASONS FOR GRANTING THE WRIT

I. The Second Circuit’s Decision Conflicts

With Supreme Court Precedent

Requiring Equal Protection of the Laws

for Public and Private School Children

Who are Similarly Situated with

Respect to Child Protection Laws

A. As it Relates to the Provision of Public

Services and Safety Measures, Studentsin Public and Nonpublic Schools are

Similarly Situated

The Equal Protection Clause of the Fourteenth Amendment instructs, “No State shall deny anyperson within its jurisdiction the equal protection ofthe laws.” U.S. Const. amend. XIV. This Court hasinterpreted the Equal Protection Clause to requirethat “all persons similarly situated should be treatedalike.” City of Cleburne v. Cleburne Living Ctr., 473U.S. 432, 439 (1985). Thus, intentionaldiscrimination between similarly situated groups ofpeople violates the Equal Protection Clause. Dwyer


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at 1385. The constitution does not require a showingthat such discrimination was enacted with the intentto harm a particular group in violation of theFourteenth Amendment. Id . Rather, a government’smere indifference to the safety of a particular groupis sufficient to violate that group’s Equal Protectionrights. Id . Where government discriminationbetween similarly situated groups is found; thegovernment bears the burden of providing a rational

justification for such discrimination.

Prior decisions of this Court have found thatprivate and public school children are similarlysituated and deserve equal treatment of generallyapplicable public services and protective measures.Everson v. Bd. of Educ. of the Twp. of Ewing , 330U.S. 1 (1947). In Everson, a township board ofeducation authorized the reimbursement to parentsof money spent on public transportation for theirchildren to attend school. Id . The reimbursementswent to both public and private school children. Id .The law was challenged because public funds could

not constitutionally be provided to private schoolchildren. Id . The Court rejected those challenges,finding that private school children were similarlysituated to public school children; thus, they wereequally deserving of the benefits of neutral, generallyapplicable programs. Id . The Court used ametaphor—one that applies perfectly in this case—offiremen and policemen who act to protect the lives ofchildren. Id. at 25-26. Even the dissent agreed thatin "matters of common right, part of the general needfor safety. Certainly the fire department must notstand idly by while the church burns." Id. at 61-62(Rutledge, J., dissenting). The same can be said forthe provision of essential services like streets,


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sidewalks, and sewage facilities. Bd. of Educ. ofCent. Sch. Dist. No. 1 v. Allen, 392 U.S. 236, 242(1968). The same can be said for laws mandatingfingerprinting and background checks.

There are differences between public and privateschool education, but the students are similarlysituated with respect to their need to be protected bychild protection laws, and merit equal protection. InNew York, and elsewhere, religious school childrenare now facing harm by the Legislature’s decision to

exclude them from mandated child protection laws.The lack of employee fingerprinting means thatregistered sex offenders can more easily manage tofind work in religious schools. The failure to requirebasic and appropriate abuse detection andprevention training for nonpublic school employeesmakes it more likely that private school children willbe hurt.

The Court found in Everson that States had ahistorical interest in providing for the public healthand welfare of all children. McGowan v. Maryland ,

366 U.S. 420, 444 (1961). Moreover, the Court heldthat the State must secure against dangers that mayplague children in pursuit of their education. Prince ,321 U.S. at 168. As noted, these protective measuresare what the Court has called "matters of commonright, part of the general need for safety." Walz. v.Tax Comm’n of City of New York , 397 U.S. 644, 67(1970). The Court has held that the provision ofthese public services to religious schools is not aviolation of the Establishment Clause or the FreeExercise Clause. Id . In the case at bar, the New Yorklegislature failed to protect a child from attending aschool where sexual offenders may be employed,based on an arbitrary distinction.


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B.

Child Protection Laws, Like Public

Services, Are Equally Applicable to

Both Public and Private School

Children

On July 27, 2006, the U.S. Congress establishedthe National Sex Offender Registry “[i]n order toprotect the public from sex offenders and offendersagainst children . . . ” 42 U.S.C. § 16901. As the

Court noted in Reynolds , the Act sought “to makemore uniform and effective a patchwork of pre-Actfederal and 50 state registration systems.” Reynoldsv. United State s, 132 S.Ct. 975, 976 (2012). New

York passed The Sex Offender Registration Act(SORA) in 1996 and related penal laws mandate thatconvicted sex offenders must:

[R]efrain from knowingly entering intoor upon any school grounds . . . or anyother facility or institution primarilyused for the care or treatment of

persons under the age of eighteen whileone or more of such persons under theage of eighteen are present . . .

N.Y. CLS Correct, Art. 6-C; N.Y. Penal Law § 65.10(McKinney).

This statute and its related criminal penaltiesapply to all schools, both public and private. Id .

In February of this year, the New York StateSenate Coalition published the results of a bi-partisan coalition that lists numerous loopholes inthe existing sex offender registration laws. The NYSSenate Coalition, Keeping Our Children Safe FromSex Offenders (2015), http://www.nysenate.gov/files/pdfs/Keeping_our_Children_Safe.pdf. The result of


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this was the passage of nine bills to “close dangerousloopholes in the laws protecting children andcommunities from sexual predators.” SenateCoalition Announces Passage of Bills to Close

Dangerous Loopholes in Sex Offender Laws , NEW Y ORK STATE SENATE, Feb. 26, 2015,http://www.nysenate.gov/press-release/senate-coalition-announces-passage-bills-close-dangerous-loopholes-sex-offender-laws. With its passage, SenateIndependent Democratic Conference Leader and

Coalition Co-Leader Jeff Klein stated, “Today theSenate sent a message that dangerous sexualpredators do not belong anywhere near schools,including pre-schools.” Id . Senate Majority LeaderDean Skelos, an author of Megan’s Law, said, “New

York needs to take additional steps to address courtrulings and loopholes that are reducing theeffectiveness of Megan’s Law and other measures toprotect our children from sexual predators.” Id . Theresult of all of this—the investigations in the wake ofDiack (where harsher local restrictions were

preempted by state restrictions) and the passage ofthese laws—has created a system that is safer thanbefore. People v. Diack , 41 Misc. 3d 36, 37, 974N.Y.S.2d 235, 236 (App. Term 2013) (leave to appealgranted 22 N.Y.3d 1155, 7 N.E.3d 1127 (2014) rev'd ,24 N.Y.3d 674, 26 N.E.3d 1151 (2015)).

Even now, the fact remains that only publicschool students enjoy these greater protections.Similarly situated students, i.e. the public schoolstudent and the nonpublic school student, are beingtreated differently by the legislature. 1 When

1 Even plugging the loopholes that New York State claimedneeded to be closed still puts private schools in an inferior


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representatives of the legislature stated, “dangeroussexual predators do not belong anywhere nearschools,” they did not differentiate between publicand private institutions. New York State Senate,supra. That differentiation exists in laws such asNew York's Project SAVE.

Statutorily mandated fingerprinting for nonpublicschool employees would be entirely consistent withlong-standing common-law principles and modernpublic policy. As stated by the Court in Veronica Sch.

Dist. 47J v. Acton, 515 U.S. 646, 654 (1995), "Whenparents place minor children in private schools fortheir education, the teachers and administrators ofthose schools stand in loco parentis over the childrenentrusted them." The private schools thus owe thesame high duty of care parents ordinarily owe theirown children. As Justice Cardozo noted in Finlay v.Finlay , 240 N.Y. 429, 434 (1925), the Government is" parens patriae " for the protection of infants. Seealso Prince , 321 U.S. at 166. As recently as 2006,New York state courts have said that the state

possesses an "explicit and compelling public policy toprotect children from the harmful conduct of adults,particularly in an educational setting. BinnhamtonCity Sch. Dist. v. Peacock , 33 A.D.3d 1074, 1076, 823N.Y.S.2d 23, 1233 (3rd Dept. 2006), apt. dism., 8N.Y.3d 840, 830 N.Y.S.2d 692 (2007). N.Y. Educ. Law§ 549(1) "Health and Safety Grants for NonpublicSchool Children" provides: "The legislature herebyfinds and declares that: [. . .] The state has a primary

position compared to public schools in terms of security. Inessence, private school students would be better off with thebroken laws public school systems once enjoyed versus thenonexistent laws that private schools currently have.


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responsibility to ensure the health, welfare andsafety of children attending both public andnonpublic schools."

C. This Court Should Grant the Writ to

Resolve a Disparity Among the States

as to Whether Child Protection Laws

Apply Equally to Private and Public

School Children

The primary responsibility for regulatingeducation in the United States has traditionallyrested with the individual states. DeGroff at 370. Infulfilling this responsibility, states have “navigate[d]in waters that have never been fully charted by theUnited States Supreme Court.” Id . Consequently,there is a wide degree of variation in stateregulations that protect some children and denyother children equal protection. Id . A concern at theheart of this case is that a child in public school hasmore legal protections in place than one in a private

school. Id . Forty-two of the fifty U.S. states requirecriminal-background checks and fingerprinting forteacher certification in public schools. Jennifer Park,Education Week Survey , A CROSS THE N ATION, Apr.30, 2003, http://www.edweek.org/legacymedia/ew/vol-22/gallery/17webtable.pdf. However, only about onethird of the states mandate similar requirements fornonpublic schools. U.S. DEP’T OF EDUC., STATEREGULATION OF PRIVATE SCHOOLS (2009).

As of 2009, only 17 states specifically requiredmandatory reporting of any incidences of child abuseoccurring at non-public schools. Id . Even now,although every state has a mandatory reportingstatute, only a handful specifically require nonpublic


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schools to report child abuse. Id . The remainder usevague statutes to inadequately address this issue.Villarin v. The Rabbi Haskel Lookstein School , 96

A.D.3d 1 (N.Y. Sup. Ct. 2012). Additionally, statuesregarding mandatory reporting of child abuse inprivate schools only require specific staff andemployees to report it as opposed to the blanket anduniversal requirements for reporting child abuse inpublic schools. Mandatory Reporting of Child Abuseand Neglect 2013 Introduced State Legislation,

N AT

’L

CONF

. O

FS

T. L

EGISLATURES, Sept. 23, 2014,http://www.ncsl.org/research/human-

services/redirect-mandatory-rprtg-of-child-abuse-and-neglect-2013.aspx. As is apparent, child safetylaws discriminate among groups of children based“on an arbitrary and improper basis.” Dwyer at 1326.

Given the strong federal policy of protectingchildren from abuse, this Court should grant the writto resolve this disparity and clarify the application ofEqual Protection to child protection laws.

D.

There Exists a Severe Split of Authority onthe Issue of the Ministerial Exception to

Generally Applicable Laws Which is

Directly Related to the Hiring Procedures

at Issue in this Case.

To the extent that the state legislatures haveexempted private institutions, including privatereligious institutions, to avoid any questions relatingto the hiring of ministers or clergy, they should not.

Among the circuits, there is three way split ofauthority on applying the ministerial exception toTitle VII of the 196 Civil Rights Act: first, theprimary duties test; second, the holistic approach;


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third, a case-by-case analysis. W. COLE DURHAM ANDROBERT SMITH, RELIGIOUS ORGANIZATIONS AND THEL AW § 9.9 (2d ed. 2010), Westlaw (database updated2015). In reality, the split is far greater with dividespresent in all three approaches, particularly a splitbetween qualitative and quantitative evaluation ofthe primary duties test. Id . These competingapproaches result in inconsistent outcomes infactually indistinguishable cases. Id .

The holding in Hosanna –Tabor leaves open the

question of whether the State’s compelling interestin protecting children, specifically in the instance ofreporting sexual abuse (or requiring backgroundchecks, as is the case in U.L.), could trump the First

Amendment rights of religious organizations andemployers. Hosanna-Tabor Evangelical LutheranChurch & Sch. v. E.E.O.C., 132 S. Ct. 694, 710(2012). The Court explicitly declined to addresswhether a state interest other than fair employment,such as child welfare and safety, would trigger adifferent outcome and result, awaiting such a case to

appear. Id .The circuit split here is crucially important in this

case: in some of the above mentioned circuits theministerial exception would cover all schoolemployees, under some it would only cover someschool employees, and in still others it would coverno school employees. This kind of discrepancy cannotbe allowed to exist. The Supreme Court is wellsituated to make this important clarification.

This severe fracture of authority amongst thevarious circuits’ raises concerns about the nature ofthe ministerial exception to generally applicablelaws, including its application in private schoolsettings and child safety.


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II. The Second Circuit’s Decision Conflicts

with Supreme Court Precedent

Maintaining the Right of Parents to

Send Children to Nonpublic Schools By

Forcing Them to Choose Between This

Right and the Safety of their Children.

The Due Process Clause of the Fourteenth Amendment states that “[n]o state shall . . . deprive

any person of life, liberty, or property, without dueprocess of law.” U.S. Const. amend. XIV. The Courtclarified that the liberty embodied in the DueProcess Clause includes the liberty to “establish ahome and bring up children.” Meyer v. Nebraska,262 U.S 390, 399 (1923).

In Pierce , the Court expanded the rights ofparents raising children, when it struck down anOregon law that compelled all students in a specifiedage range to attend public schools. Pierce , 268 U.S.at 535. The Court ruled that parents have a

fundamental right to send their children to privateschools. Id . This right was reaffirmed in Yoder ,where the Court held that a state’s interest inuniversal education had to be balanced against thefundamental rights of parents with respect to theupbringing of their children. Wisconsin v. Yoder , 406U.S. 205, 214 (1972).

Time and time again, decisions of this Court haveconsistently upheld the fundamental right of parentsto direct the education of their children, specificallywhether to send them to public or nonpublic schools.

As a fundamental right, this “parental liberty is to beprotected by the highest standard of review.”Christopher J. Klicka, Decisions of the United States


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Supreme Court Uphold Parental Rights as“Fundamental” , HOME SCH. LEGAL DEF. A SS’N, Oct.27, 2003, http://www.hslda.org/docs/nche/000000/00000075.asp#18. Whenever government burdens afundamental right, it implicates a strict scrutinystandard of review. Stephen A. Siegel, The Origin ofthe Compelling State Interest Test and Strict

Scrutiny , 48 THE A M. J. OF LEGAL HIST 355 (2006).Strict scrutiny requires the government to prove thatthe burdensome government act is narrowly tailored

to achieve a compelling state interest. Id .The New York Legislature, amongst other statelegislatures, has unduly burdened parents andinfringed on their fundamental rights. Parents areforced to choose between sending their children topublic schools with mandated safety measures, or toprivate schools where the lack of mandatedfingerprinting and background checks places theirchildren in constant peril. Additionally, the First

Amendment right to the Free Exercise of religion isalso severely burdened here, as thousands of parents

are currently faced with the dilemma of choosingbetween their child’s safety and their “fundamentalinterest of parents, as contrasted with that of thestate, to guide the religious future and education oftheir children.” Yoder , 406 U.S. at 232 (emphasisadded). The New York Legislature’s discriminatorydecision to only mandate employee backgroundchecks and fingerprinting in public schools and notprivate schools fails the compelling state interesttest.

This Court should take this opportunity to findthat the Constitution requires New York and everyother state to apply the same standard of fingerprinttesting and background checks it mandates for public


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schools to administrators and employees of non-public schools. At this moment, a child who shareseverything in common with a neighbor—except thechild attending a non-public school—is not receivingthe same protections under the law as his neighbor.Failing to mandate fingerprint testing andbackground checks effectively creates an impossibledilemma for parents, a safe harbor for predators, andan immeasurable risk of trauma for children.

CONCLUSION

For the foregoing reasons, the petition for a writcertiorari should be granted.

Respectfully submitted,

S ARAH M. SHALF Counsel of Record

EMORY L AW SCHOOL S. CT. A DVOCACY PROGRAM 1301 Clifton Road

Atlanta, Georgia 30322(404) [email protected]

ELLIOT P ASIK 366 Pearsall Avenue,Suite 5Cedarhurst, NY 11516(516) 371-2800

M ARK GOLDFEDER Of Counsel


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APPENDIX


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APPENDIX A — SUMMARY ORDER OF THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT DATED

FEBRUARY 5 2015

IN THE UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT

No. 14-555-cv

U.L., individually and as father and natural

guardian of E.L., an infant under the age of 18 years,

Plaintiff-Appellant,

v.

NEW Y ORK STATE A SSEMBLY , NEW Y ORK STATE

SENATE, SHELDON SILVER, in his official capacity as

Speaker of the New York State Assembly, JEFFERY

K LEIN, in his official capacity as President Pro

Tempore of the New York State Senate and as

Senate Independent Democratic Conference Leader, DEAN SKELOS, in his official capacity as President Pro

Tempore of the New York State Senate, and the

STATE OF NEW Y ORK ,

Defendants-Appellees.1

SUMMARY ORDERUPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.

" The Clerk of Court is respectfully directed to amend the

official caption in this case to conform with the caption above.


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Plaintiff-appellant U.L. appeals from the judgment of the United States District Court for theSouthern District of New York (Griesa, J.),dismissing this case on the ground that defendants-appellees enjoy sovereign and legislative immunity.We assume the parties' familiarity with theunderlying facts, the procedural history, and theissues presented for review.

U.L., the father of a child enrolled in a Jewish

religious school in New York, brings myriadconstitutional claims challenging New York's child-protection laws, which regulate New York publicschools.

We review de novo dismissals of claims underFederal Rule of Civil Procedure 12(b)(1) or 12(b)(6).Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326,329 (2d Cir. 1997). We agree with the district courtthat U.L. cannot sue the State of New York, the New

York State Assembly, or the New York State Senate

because those defendants enjoy sovereign immunity.Pennhurst State Sch. & Hosp. v. Halderman, 465U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984);Pikulin v. City Univ. of N.Y., 176 F.3d 598, 600 (2dCir. 1999) (per curiam) (articulating test for whethergovernmental entity is "arm of the state"). The statelegislator defendants enjoy immunity for theirlegislative acts. State Emps. Bargaining Agent Coal.v. Rowland , 494 F.3d 71, 88 (2d Cir. 2007).

U.L. argues that, even if his claims are barred aspresently pleaded, he should be given an opportunityto replead them to avoid the immunity doctrines. Wedo not think it is necessary to remand for this


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purpose. 2 Assuming U.L. could successfully pleadaround the immunity doctrines, his claims wouldstill fail as a matter of law. The challenged child-protection laws, which are unquestionably secular,are equally inapplicable to all private schools,religious and secular. Nothing about them offendsthe Establishment or Free Exercise Clauses of theFirst Amendment. See Lemon v. Kurtzman, 403 U.S.602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971);Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 533, 113 S. Ct. 2217, 124 L.Ed. 2d 472 (1993).

U.L.'s claims under the Equal Protection and DueProcess Clauses of the Fourteenth Amendmentlikewise fail, because the laws neither target asuspect class nor impair the exercise of afundamental right, and easily pass muster underrational basis review. See Romer v. Evans , 517 U.S.620, 631, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996).

For the foregoing reasons, and finding no merit inU.L.'s other arguments, we hereby AFFIRM the

judgment of the district court.

FOR THE COURT:CATHERINE O'HAGAN WOLFE, CLERK/s/ Catherine O'Hagan Wolfe

# Because remand is unnecessary, U.L.'s demand that Judge

Griesa be disqualified from any future proceedings is moot.


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APPENDIX B — OPINION AND ORDER OF

THE DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

DATED JANUARY 29 2014

IN THE DISTRICT COURT FOR THE SOUTHERNDISTRICT OF NEW YORK

No. 13-cv-00438

URIEL LEVI,

Plaintiff,

v.

NEW YORK STATE ASSEMBLY, NEW YORKSTATE SENATE, SHELDON SILVER, DEAN G.SKELOS, JEFFERY D. KLEIN, THE STATE OF

NEW YORK,

Defendants.

Plaintiff, Uriel Levi, individually and as fatherand natural guardian of Elisheva Levi, an infant,brings this civil action under 42 U.S.C. § 1983against the following defendants: (1) the State ofNew York, (2) the New York State Assembly andNew York State Senate, and (3) the following statelegislators— Sheldon Silver, Speaker of the New

York State Assembly, and Chair of the AssemblyRules Committee; Dean G. Skelos, President Pro

Tempore of The New York State Senate, Chair of theSenate Republican Conference Committee, and Chairof the Senate Rules Committee; and Jeffrey D. Klein,


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President Pro Tempore of the New York StateSenate, and Chair of the Senate IndependentDemocrat Conference. Levi alleges that defendantsviolated his as well his daughter’s constitutionalrights by failing to include private schools within thecoverage of Project SAVE (“Safe Schools Against

Violence in Education”)—a set of laws passed toprotect public school students from sexual abuse bypublic school employees. Levi seeks declaratory andinjunctive relief, requiring defendants to extend

Project SAVE to private schools.

The defendants move to dismiss the complaint.The motion to dismiss is granted on the basis thatdefendants are protected by sovereign and legislativeimmunity.

The Complaint

The following facts are drawn from the complaintand assumed to be true for purposes of the motion.

Levi is an Orthodox Jew and his daughter— Elisheva Levi—attends a private, Modern-OrthodoxJewish school located in Nassau County, New York.Levi alleges that there have been repeated instancesof child abuse in private schools, especially religiousschools, and that school officials are not takingsufficient steps to protect the students. In particular,Levi alleges that the Ultra-Orthodox Jews, ratherthan the Modern-Orthodox Jews, have worked toprevent government legislation that would reformprivate school practices to prevent child abuse.


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In 2001, the New York State Assembly andSenate considered Project SAVE. The bill mandatedthat New York public schools: (1) conductfingerprinting and criminal history backgroundchecks for all public school job applicants throughoutNew York, (2) report to law enforcement all instancesof abuse committed by public school employees uponpublic school students, (3) end secret agreementpolicies, or “silent resignations”, whereby publicschools agree not to report to law enforcement those

public school employees accused of abuse so long asthe employees resign, and (4) require school safetyplans.

When considering Project SAVE, legislatorsconsulted with private school officials. Thelegislators sought the school officials’ opinion as towhether Project SAVE should also cover privateschools. In particular, Levi alleges that theLegislature consulted with private school officials atreligious schools— namely, Catholic and Ultra-

Orthodox Jewish institutions. Levi alleges that theseschool officials, without consulting with the parentsof their school children, advised the legislators thatthey did not want the bill to cover the religiousschools.

The New York State Legislature passed ProjectSAVE and the Governor signed it into law. Thelegislation did not include private schools in itscoverage.

Through their failure to extend the Project SAVElegislation to include religious schools, defendants,


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according to Levi, have violated his as well as hisdaughter’s constitutional rights.

First, Levi alleges that defendants have deniedboth him and his daughter their right to equalprotection of the law under the Fourteenth

Amendment. Namely, by having to attend a schoolwhere the teachers are not subject to backgroundchecks, Levi’s daughter does not have the sameprotection and security as students in public schools.

Second, Levi claims that the defendants haveinfringed upon the liberty clause of the Fourteenth

Amendment. In exempting religious schools fromProject SAVE, the defendants, according to Levi,have constructively abrogated the constitutionalright of children to attend religious schools and therights of parents to send their children to religiousschools because the schools cannot ensure thestudents’ safety.

Third, Levi alleges that defendants haveinfringed upon his as well his daughter’s First

Amendment right to freely exercise their religion.The defendants, through failing to include religiousschools in Project SAVE, have created an unsafeeducational environment for students, like Levi’sdaughter Elisheva, that threatens both children’sright to practice their religion and impairs theparents’ right to send their children to religiousschool.

Fourth, Levi claims that defendants have violatedthe Establishment Clause of the First Amendment.Specifically, by declining to extend Project SAVE to


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private schools, the Legislature prioritized the valuesof the Ultra-Orthodox, who were strongly against thelegislation, as opposed to the Modern-Orthodox Jews,like the plaintiff who had had a less-defined positionon the legislation. As a result, Levi alleges that theLegislature has endorsed the form of Judaismpracticed by the Ultra-Orthodox.

Levi requests that the court issue a declaratory judgment stating that defendants have violated his

as well as his daughter’s constitutional rights andrequiring defendants to pass legislation extendingProject SAVE to private schools.

Discussion

Defendants raise several defenses to Levi’sclaims: (1) defendants are protected from suit bysovereign and legislative immunity, (2) Levi does nothave standing to file suit against defendants, and (3)Levi has failed to state a claim for which relief can be

granted. The court need not address all ofdefendants’ arguments as the court finds thatdefendants are protected from suit by sovereign andlegislative immunity.

In the complaint, Levi names multipledefendants—the State of New York, the New YorkState Assembly and New York State Senate, andindividual members of the State Senate and State

Assembly. The court will address each defendant inturn.

The Eleventh Amendment prevents Levi fromfiling suit against the State of New York. The


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Eleventh Amendment to the United StatesConstitution states that “[t]he judicial power of theUnited States shall not be construed to extend to anysuit in law or equity commenced or prosecutedagainst one of the United States by Citizens ofanother State, or by Citizens or Subjects of anyForeign State.” U.S. Const. amend. XI. “It has beeninterpreted to prevent federal courts from exercising

jurisdiction over suits brought by citizens of a stateagainst the state or the state's agencies.” MCI

Telecommunications Corporation v. New YorkTelephone Company , 134 F. Supp. 2d 490, 496(N.D.N.Y. 2001).

It is true that there are limits to state sovereignimmunity. Congress may enact a statute thatabrogates state immunity and subjects the states tosuit. See In Re Deposit Insurance Agency , 482 F. 3d612, 617 (2d Cir. 2007) (citing Tennessee v. Lane ,541 U.S. 509, 517 (2004)). Also, a state may waive itsEleventh Amendment immunity- for example, by

voluntarily invoking federal jurisdiction, as when thestate itself brings a federal suit or removes a casefrom state to federal court. Id . However, in this case,Congress has not sanctioned, nor has the State ofNew York consented to the present litigation.

Accordingly, the cause of action against the State ofNew York is dismissed.

Both the New York State Assembly and the New York State Senate are also protected from suit by thedoctrine of sovereign immunity. A governmentalentity that is “like an arm of the state” is entitled toEleventh Amendment immunity. See Gollomp v.Spitzer , 568 F.3d 355, 366 (2d Cir. 2009) (quoting


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Woods v. Rondout Valley Central School District

Board of Education, 366 F.3d 232, 236 (2d Cir.2006)). Surely, the Legislature is an arm of the stateand protected from suit by sovereign immunity. SeeGollump v. Spitzer , 568 F.3d at 366. Thus, the causeof action against the New York State Assembly andthe New York State Senate is dismissed.

The doctrine of legislative immunity preventsLevi from filing suit against the individually named

legislators. The legislators are not protected bysovereign immunity because “under the venerabledoctrine of Ex parte Young, 209 U.S. 123 (1908), aplaintiff may sue a state official acting in his officialcapacity-notwithstanding the Eleventh Amendment-for ‘prospective injunctive relief’ from violations offederal law.” In re Deposit Insurance Agency , 482F.3d at 617. In his complaint, Levi has allegedviolations of federal law pursuant to § 1983 andnamed the following defendants in their officialcapacity: (1) Sheldon Silver—Speaker of the New

York State Assembly and Chair of the AssemblyRules Committee, (2) Dean G. Skelos—President ProTempore of the New York State Senate, Chair of theSenate Republican Conference Committee, and Chairof the Senate Rules Committee, and (3) Jeffery D.Klein—president Pro Tempore of the New York StateSenate and Chair of the Senate IndependentDemocrat Conference.

While under Ex Parte Young a plaintiff may file suitagainst a state official, the Supreme Court has heldthat state legislators are protected by legislativeimmunity. State legislators are immune from suitunder § 1983 actions for declaratory or injunctive


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relief. See Supreme Court of Virginia v. ConsumersUnion of U.S., Inc., 446 U.S. 719, 732 (1980). TheCourt explained that “a private civil action, whetherfor an injunction or damages, creates a distractionand forces [legislators] to divert their time, energy,and attention from their legislative tasks to defendthe litigation.” Id. at 733 (quoting Eastland v. UnitedStates Servicemen’s Fund , 421 US 491, 503 (1975)).

Legislators are entitled to absolute immunity—

both in their official and individual capacity—whenthey are performing legislative functions. SeeSchubert v. City of Rye , 775 F.Supp. 2d 689, 701(S.D.N.Y. 2011). “Courts apply a functional test todetermine whether an act is legislative, whichfocuses ‘not on the official’s identity, or even on theofficial’s motive or intent, but on the nature of theact in question.’” Id . (quoting State EmployeesBargaining Agent Coalition v. Rowland , 494 F.3d 71,82 (2d Cir. 2007)). “Absolute legislative immunityattaches to all actions taken in the sphere of

legitimate legislative activity.” Bogan v. Scott- Harris , 523 U.S. 44, 54 (1998). There is no doubt thatthrough their involvement in the Project SAVElegislation, the state legislators in this case wereinvolved in legislative activity. Accordingly, the statelegislators have absolute immunity from Levi’s suit.

On June 26, 2013, Levi filed a cross motion toamend his complaint and for summary judgment. Inparticular, Levi moved to amend his complaint toalso name each legislator in his individual capacity.However, given that legislators have absoluteimmunity when performing legislative activities, seeSchubert v. City of Rye , 775 F.Supp. 2d at 701, Levi


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has proposed a futile amendment and thus, the courtdenies the motion to amend the complaint. SeeLipton v. New York University College of Dentistry ,865 F. Supp. 2d 403, 407 (S.D.N.Y. 2012).Furthermore, the court need not reach Levi's motionfor summary judgment as the court finds that thiscase is dismissed.

Conclusion

Defendants' motion is granted and the case isdismissed. This opinion resolves the motions listedas item numbers 19 and 23 on the docket.

SO ORDERED.

Dated: New York, New York

January 29,2014

/s/ Thomas P. Griesa

Thomas P. Griesa

U.S. District Judge

Documents

UL Petition Final