CLOSED,ACO
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:18−cv−04167−ILG−JO

Young Advocates For Fair Education v. Cuomo et al Assigned to: Judge I. Leo Glasser Referred to: Magistrate Judge James Orenstein Cause: 28:1343 Violation of Civil Rights
Plaintiff

Date Filed: 07/23/2018 Date Terminated: 01/17/2019 Jury Demand: Plaintiff Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Young Advocates For Fair Education

represented by Renita Sharma Quinn Emanuel Urquhart & Sullivan LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 212−849−7000 Fax: 212−849−7100 Email: renitasharma@quinnemanuel.com ATTORNEY TO BE NOTICED

Samuel Coulter Kitchens Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Ave 22nd Floor New York, NY 10010 UNITED STA 212−849−7000 Fax: 212−849−7100 Email: samuelkitchens@quinnemanuel.com TERMINATED: 12/07/2018 ATTORNEY TO BE NOTICED

Thomas Alexander Bridges Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue 22nd Floor New York, NY 10010 212−849−7060 Fax: 212−849−7100 Email: thomasbridges@quinnemanuel.com ATTORNEY TO BE NOTICED

Eric Hui−Chieh Huang Quinn Emanuel Urquhart & Sullivan LLP 51 Madison Ave 22nd Floor New York, NY 10010 (212)849−7000 Fax: (212)849−7100 Email: erichuang@quinnemanuel.com ATTORNEY TO BE NOTICED

V.
Defendant
Andrew Cuomo in his official capacity as Governor of the State of New York

represented by Andrew Stuart Amer Office of the NY Attorney General 28 Liberty Street New York, NY 10005 212−416−6127

Defendant Betty Rosa in her official capacity as Chancellor of the Board of Regents of the State of New York
Defendant MaryEllen Elia in her official capacity as Commissioner of the New York State Education Department
Amicus Parents for Education and Religious Liberties in Schools Amicus The Center for Educational Equity

Fax: 212−416−6009 Email: andrew.amer@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica Anne Connell Office of the New York State Attorney General 28 Liberty Street New York, NY 10005 212−416−8965 Fax: 212−416−6009 Email: Monica.Connell@ag.ny.gov ATTORNEY TO BE NOTICED
Yan Fu New York Attorney General 28 Liberty Street New York, NY 10005 212−416−8582 Fax: 212−416−6009 Email: yfu@ag.ny.gov ATTORNEY TO BE NOTICED
represented by Andrew Stuart Amer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica Anne Connell (See above for address) ATTORNEY TO BE NOTICED
Yan Fu (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew Stuart Amer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Monica Anne Connell (See above for address) ATTORNEY TO BE NOTICED
Yan Fu (See above for address) ATTORNEY TO BE NOTICED
represented by Andrew J. Ceresney Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 212−909−6947

Amicus Footsteps, Inc.

Fax: 212−909−6836 Email: aceresney@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William B. Michael Paul, Weiss, Rifkind, Wharton & Garrison LLP 1285 Avenue Of The Americas New York, NY 10019 212−373−3000 Fax: 212−757−3990 Email: wmichael@paulweiss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/23/2018
07/23/2018 07/23/2018 07/23/2018 07/23/2018 07/24/2018
07/24/2018 07/25/2018

# Docket Text
1 COMPLAINT against Andrew Cuomo, MaryEllen Elia, Betty Rosa filing fee $ 400, receipt number 0207−10601325 Was the Disclosure Statement on Civil Cover Sheet completed −NO,, filed by Young Advocates For Fair Education. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons to Andrew Cuomo, # 3 Proposed Summons to Betty Rosa, # 4 Proposed Summons to MaryEllen Elia, # 5 Exhibit 1 − Felder Amendment, # 6 Exhibit 2 − NYSED Guidelines, # 7 Exhibit 3 − Census, # 8 Exhibit 4 − UJA Report, # 9 Exhibit 5 − Article, # 10 Exhibit 6 − UJA Special Report, # 11 Exhibit 7 − Article, # 12 Exhibit 8 − Article, # 13 Exhibit 9 − Article, # 14 Exhibit 10 − Article, # 15 Exhibit 11 − Ami Article, # 16 Exhibit 12 − Departure Lounge Article, # 17 Exhibit 13 − Senate Bill No. S8992, # 18 Exhibit 14 − Flanagan Statement, # 19 Exhibit 15 − Article, # 20 Exhibit 16 − Article, # 21 Exhibit 17 − Article) (Huang, Eric) (Entered: 07/23/2018)
2 NOTICE of Appearance by Samuel Coulter Kitchens on behalf of Young Advocates For Fair Education (aty to be noticed) (Kitchens, Samuel) (Entered: 07/23/2018)
3 NOTICE of Appearance by Thomas Alexander Bridges on behalf of Young Advocates For Fair Education (aty to be noticed) (Bridges, Thomas) (Entered: 07/23/2018)
Case Assigned to Judge I. Leo Glasser and Magistrate Judge James Orenstein. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Williams, Erica) (Entered: 07/24/2018)
4 Summons Issued as to Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Attachments: # 1 Summons2, # 2 Summons3) (Williams, Erica) (Entered: 07/24/2018)
5 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Williams, Erica) (Entered: 07/24/2018)
6 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Williams, Erica) (Entered: 07/24/2018)
7 SUMMONS Returned Executed by Young Advocates For Fair Education. Andrew Cuomo served on 7/24/2018, answer due 8/14/2018. (Huang, Eric) (Entered: 07/25/2018)

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08/08/2018 08/08/2018 08/08/2018
08/09/2018
08/20/2018 08/22/2018 08/24/2018 08/24/2018 08/24/2018 08/24/2018 08/24/2018 08/24/2018

8 SUMMONS Returned Executed by Young Advocates For Fair Education. Betty Rosa served on 7/25/2018, answer due 8/15/2018. (Huang, Eric) (Entered: 07/25/2018)
9 SUMMONS Returned Executed by Young Advocates For Fair Education. MaryEllen Elia served on 7/25/2018, answer due 8/15/2018. (Huang, Eric) (Entered: 07/25/2018)
10 SUMMONS Returned Executed by Young Advocates For Fair Education. Andrew Cuomo served on 8/2/2018, answer due 8/23/2018. (Huang, Eric) (Entered: 08/02/2018)
11 Letter MOTION for Extension of Time to File Answer re 1 Complaint,,, by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Connell, Monica) (Entered: 08/03/2018)
ORDER re: 11 Letter MOTION for Extension of Time to File Answer −− The plaintiff is respectfully directed to respond to the defendants' letter motion by August 8, 2018. Ordered by Magistrate Judge James Orenstein on 8/3/2018. (Salvador, Anjali) (Entered: 08/03/2018)
12 Letter Responding to Defendants' Motion for Extension of Time by Young Advocates For Fair Education (Huang, Eric) (Entered: 08/08/2018)
13 NOTICE of Appearance by Andrew Stuart Amer on behalf of Andrew Cuomo, MaryEllen Elia, Betty Rosa (aty to be noticed) (Amer, Andrew) (Entered: 08/08/2018)
ORDER granting 11 Motion for Extension of Time to Answer −− On consent, see Docket Entry 12 , I extend the defendants' time to answer the Complaint to October 2, 2018. With respect to the scheduling for the preliminary injunction motion, I defer to the assigned district judge. Ordered by Magistrate Judge James Orenstein on 8/8/2018. (Salvador, Anjali) (Entered: 08/08/2018)
14 SCHEDULING ORDER −− I order the parties to appear for an initial discovery planning conference in Courtroom 11D South of the United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York on October 4, 2018 at 9:30 a.m. No later than October 2, 2018, the parties must submit, by means of electronic filing on the court's ECF (Electronic Case Filing) system, a joint proposed discovery plan. Each party's counsel must be personally prepared to discuss all factual and legal issues in the case, including the possibility of settlement; otherwise, the client must attend in person as well. SEE ATTACHED ORDER. Ordered by Magistrate Judge James Orenstein on 8/9/2018. (Salvador, Anjali) (Guy, Alicia). Modified on 8/9/2018 (Guy, Alicia). (Entered: 08/09/2018)
15 Letter Regarding Briefing For Plaintiff's Anticipated Motion for a Preliminary Injunction by Young Advocates For Fair Education (Huang, Eric) (Entered: 08/20/2018)
16 ORDER approving the proposed amended motion briefing schedule 15 . Ordered by Judge I. Leo Glasser on 8/21/2018. (Kessler, Stanley) (Entered: 08/22/2018)
17 Notice of MOTION for Preliminary Injunction by Young Advocates For Fair Education. (Huang, Eric) (Entered: 08/24/2018)
18 Notice of MOTION for Preliminary Injunction by Young Advocates For Fair Education. (Attachments: # 1 Memorandum in Support of YAFFED's Motion for a Preliminary Injunction) (Huang, Eric) (Entered: 08/24/2018)
19 DECLARATION re 18 Notice of MOTION for Preliminary Injunction of Naftuli Moster by Young Advocates For Fair Education (Attachments: # 1 Exhibit) (Huang, Eric) (Entered: 08/24/2018)
20 DECLARATION re 18 Notice of MOTION for Preliminary Injunction of Chaim Widger by Young Advocates For Fair Education (Huang, Eric) (Entered: 08/24/2018)
21 DECLARATION re 18 Notice of MOTION for Preliminary Injunction of Pesach Eisen by Young Advocates For Fair Education (Huang, Eric) (Entered: 08/24/2018)
22 DECLARATION re 18 Notice of MOTION for Preliminary Injunction of Thomas Bridges by Young Advocates For Fair Education (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13

08/27/2018 09/13/2018 09/13/2018
09/14/2018 09/17/2018
09/17/2018 09/18/2018
09/24/2018 09/27/2018 10/01/2018 10/02/2018 10/02/2018
10/02/2018 10/02/2018 10/05/2018

Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30) (Huang, Eric) (Entered: 08/24/2018)
23 NOTICE of Appearance by Yan Fu on behalf of Andrew Cuomo, MaryEllen Elia, Betty Rosa (aty to be noticed) (Fu, Yan) (Entered: 08/27/2018)
24 Letter dated 9/3/2018 from Rabbi Yoel Loeb to Judge I. Leo Glasser. (Kessler, Stanley) (Entered: 09/13/2018)
25 Letter MOTION for Leave to File Amended Declarations in Support of Motion for Preliminary Injunction by Young Advocates For Fair Education. (Attachments: # 1 Exhibit A − Amended Widger Declaration, # 2 Exhibit B − Amended Moster Declaration, # 3 Exhibit C − Redline Widger Declaration, # 4 Exhibit D − Redline Moster Declaration) (Huang, Eric) (Entered: 09/13/2018)
26 ORDER granting 25 Motion for Leave to File Amended Declarations. Ordered by Judge I. Leo Glasser on 9/14/2018. (Kessler, Stanley) (Entered: 09/14/2018)
27 AFFIDAVIT/DECLARATION in Support re 17 Notice of MOTION for Preliminary Injunction . Amended Declaration of Naftuli Moster in Support of Plaintiff's Motion for Preliminary Injunction (Amending Dkt 19) filed by Young Advocates For Fair Education. (Huang, Eric) (Entered: 09/17/2018)
28 AFFIDAVIT/DECLARATION in Support re 17 Notice of MOTION for Preliminary Injunction . Amended Declaration of Chaim Widger (Amending Dkt 20) filed by Young Advocates For Fair Education. (Huang, Eric) (Entered: 09/17/2018)
SCHEDULING ORDER: Due to a conflict in the Court's calendar, the initial discovery planning conference previously scheduled for October 4, 2018, is rescheduled for October 5, 2018, at 11:30 a.m. in Courtroom 11D South. Ordered by Magistrate Judge James Orenstein on 9/18/2018. (Guy, Alicia) (Entered: 09/18/2018)
29 Unsigned letter concerning Rabbi Yoel Teitelbaum received by fax in Judge I. Leo Glasser's chambers on 9/21/2018. (Kessler, Stanley) (Entered: 09/24/2018)
30 Letter to the Honorable I. Leo Glaser and to the Honorable James Orenstein regarding consent request to file an amicus brief by Parents for Education and Religious Liberties in Schools (Steinlight, Stephen) (Entered: 09/27/2018)
31 ORDER granting the application 30 for leave to file an amicus curiae brief in opposition to plaintiffs' motion for a preliminary injunction. Ordered by Judge I. Leo Glasser on 9/28/2018. (Kessler, Stanley) (Entered: 10/01/2018)
32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 10/02/2018)
33 AFFIDAVIT/DECLARATION in Support re 32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Attachments: # 1 Exhibit Ex A − Statute (old version), # 2 Exhibit Ex B − Statute (current version)) (Amer, Andrew) (Entered: 10/02/2018)
34 MEMORANDUM in Support re 32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 10/02/2018)
35 Proposed Scheduling Order / Joint Discovery Plan by Young Advocates For Fair Education (Huang, Eric) (Entered: 10/02/2018)
36 Minute Entry for proceedings held before Magistrate Judge James Orenstein:Initial Conference Hearing held on 10/5/2018. Scheduling: (1) The next status conference will be held on February 12, 2019, at 9:30 a.m. (2) A pretrial conference will be held on April 26, 2019, at 9:30 a.m. Summary: As set forth on the record, after hearing the arguments of counsel I denied the defendants' request to stay all discovery. The ruling is of course without prejudice to any party's right to seek a protective order as to any specific discovery demand. I will enter a separate case management and scheduling order that contemplates the completion of all discovery within six months. Rather than wait to set an overall discovery deadline until the resolution of an omnibus discovery

10/05/2018
10/05/2018
10/05/2018 10/05/2018 10/05/2018 10/05/2018 10/05/2018 10/05/2018 10/05/2018 10/05/2018 10/16/2018 10/16/2018 10/19/2018 10/24/2018 10/24/2018

motion, I directed the parties to promptly raise any discovery dispute that they cannot resolve on consent as a letter motion pursuant to Local Civil Rule 37.3, with the respondent submitting a letter in opposition three business days later, and with no replies or sur−replies absent advance permission. (Orenstein, James) (Entered: 10/05/2018)
37 SCHEDULING ORDER: Deadline for all Rule 26(a)(1) disclosures: October 5, 2018. First request for production of documents and first request for interrogatories due by: November 2, 2018. Deadline for joinder of additional parties and amendment of pleadings: December 3, 2018. Status Conference (with joint status report due two business days in advance): February 12, 2019, at 9:30 a.m. All discovery, including all expert disclosures under Rule 26(a)(2), if any, to be completed by: April 5, 2019. Pretrial Conference (ex parte statements of settlement position due via email two business days in advance): April 26, 2019, at 9:30 a.m. Dispositive motion process started by: June 7, 2019. Joint pretrial order due by: July 5, 2019. SEE ATTACHED ORDER. Ordered by Magistrate Judge James Orenstein on 10/5/2018. (Orenstein, James) (Entered: 10/05/2018)
38 AFFIDAVIT/DECLARATION in Opposition re 18 Notice of MOTION for Preliminary Injunction , 17 Notice of MOTION for Preliminary Injunction filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Attachments: # 1 Exhibit A − Statute (old version), # 2 Exhibit B − Statute (current version)) (Amer, Andrew) (Entered: 10/05/2018)
39 AFFIDAVIT/DECLARATION in Opposition re 18 Notice of MOTION for Preliminary Injunction , 17 Notice of MOTION for Preliminary Injunction filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 10/05/2018)
40 MEMORANDUM in Opposition re 18 Notice of MOTION for Preliminary Injunction , 17 Notice of MOTION for Preliminary Injunction filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 10/05/2018)
41 MEMORANDUM in Opposition re 18 Notice of MOTION for Preliminary Injunction by Amici Curiae filed by Parents for Education and Religious Liberties in Schools. (Schick, Avi) (Entered: 10/05/2018)
42 DECLARATION of Dr. Adina Schick by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 10/05/2018)
43 DECLARATION of Rabbi Avrohom Schwartz by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 10/05/2018)
44 DECLARATION of Professor Aaron D. Twerski by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 10/05/2018)
45 DECLARATION of Richard Altabe by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 10/05/2018)
46 DECLARATION of Rabbi Yaacov Sebbag by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 10/05/2018)
47 MEMORANDUM in Opposition re 32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Young Advocates For Fair Education. (Huang, Eric) (Entered: 10/16/2018)
48 AFFIDAVIT/DECLARATION in Opposition re 32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Young Advocates For Fair Education. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Huang, Eric) (Entered: 10/16/2018)
49 REPLY in Support re 17 Notice of MOTION for Preliminary Injunction filed by Young Advocates For Fair Education. (Huang, Eric) (Entered: 10/19/2018)
50 NOTICE of Appearance by Andrew J. Ceresney on behalf of The Center for Educational Equity (aty to be noticed) (Ceresney, Andrew) (Entered: 10/24/2018)
51 Letter MOTION for Leave to File Document Amicus Briefs by The Center for Educational Equity, Footsteps, Inc.. (Michael, William) (Entered: 10/24/2018)

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11/21/2018 12/03/2018
12/06/2018 12/07/2018 12/11/2018 12/18/2018
12/20/2018 12/27/2018 01/07/2019

52 RESPONSE in Opposition re 51 Letter MOTION for Leave to File Document Amicus Briefs filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 10/25/2018)
53 REPLY to Response to Motion re 51 Letter MOTION for Leave to File Document Amicus Briefs filed by Footsteps, Inc., The Center for Educational Equity. (Michael, William) (Entered: 10/25/2018)
54 REPLY in Support re 32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 10/26/2018)
55 ORDER granting the motion 51 for leave to file amicus briefs. Ordered by Judge I. Leo Glasser on 10/30/2018. (Kessler, Stanley) (Entered: 10/30/2018)
56 Letter to the Hon. I. Leo Glasser by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 11/08/2018)
57 Letter in response to PEARLS amici letter (Doc No. 56) by Young Advocates For Fair Education (Huang, Eric) (Entered: 11/09/2018)
58 MEMORANDUM in Support re 18 Notice of MOTION for Preliminary Injunction , 17 Notice of MOTION for Preliminary Injunction / Brief of Amicus Curiae filed by Footsteps, Inc.. (Michael, William) (Entered: 11/09/2018)
59 MEMORANDUM in Support re 18 Notice of MOTION for Preliminary Injunction , 17 Notice of MOTION for Preliminary Injunction //Brief of Amicus Curiae The Center for Educational Equity in Support of Plaintiff's Motion for a Preliminary Injunction filed by The Center for Educational Equity. (Ceresney, Andrew) (Entered: 11/09/2018)
60 MEMORANDUM in Opposition re 58 Memorandum in Support, 59 Memorandum in Support, filed by Andrew Cuomo, MaryEllen Elia, Betty Rosa. (Amer, Andrew) (Entered: 11/21/2018)
61 NOTICE by Andrew Cuomo, MaryEllen Elia, Betty Rosa re 18 Notice of MOTION for Preliminary Injunction , 17 Notice of MOTION for Preliminary Injunction , 32 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Notice of Supplemental Authority (Attachments: # 1 Exhibit A − Revised Substantial Equivalency Review and Determination Guidelines) (Fu, Yan) (Entered: 12/03/2018)
62 MOTION to Withdraw as Attorney by Samuel C. Kitchens for Plaintiffs Young Advocates For Fair Education by Young Advocates For Fair Education. (Huang, Eric) (Entered: 12/06/2018)
ORDER granting 62 Motion to Withdraw as Attorney −− The application is granted; attorney Samuel C. Kitchens terminated. Ordered by Magistrate Judge James Orenstein on 12/7/2018. (Roantree, Bronwyn) (Entered: 12/07/2018)
NOTICE: Oral argument of plaintiff's motion for a preliminary injunction and defendants' motion for dismissal will be held on 1/9/2019 at 2:30 p.m. (Kessler, Stanley) (Entered: 12/11/2018)
63 ORDER granting the request 56 of amici Parents for Educational and Religious Liberty in Schools, Agudath Israel of America, Torah Umesorah: National Society for Hebrew Day Schools, and United Jewish Organizations of Williamsburg for acceptance of the declaration of Professor Awi Federgruen. Ordered by Judge I. Leo Glasser on 12/14/2018. (Kessler, Stanley) (Entered: 12/18/2018)
64 Letter Request to Participate at Oral Argument by Parents for Education and Religious Liberties in Schools (Schick, Avi) (Entered: 12/20/2018)
65 ORDER granting the PEARLS Amicis request to participate in the oral argument set for 1/9/2019. Ordered by Judge I. Leo Glasser on 12/27/2018. (Kessler, Stanley) (Entered: 12/27/2018)
66 NOTICE of Appearance by Renita Sharma on behalf of Young Advocates For Fair Education (aty to be noticed) (Sharma, Renita) (Entered: 01/07/2019)

01/10/2019 01/16/2019 01/17/2019

67 Minute Entry for proceedings held before Judge I. Leo Glasser on 1/9/2019: Counsel for all parties present. Plaintiffs motion for a preliminary injunction and all defendants motion for dismissal were argued. Decision was reserved. (Court Reporter Linda Danelczyk.) (Kessler, Stanley) (Entered: 01/10/2019)
68 MEMORANDUM & ORDER, For the foregoing reasons, Defendants' 32 Motion to Dismiss for Lack of Jurisdiction is GRANTED; and YAFFED'S 17 and 18 Motions for Preliminary Injunction are therefore denied. Ordered by Judge I. Leo Glasser on 1/16/2019. Fwd. for jgt. (Layne, Monique) . (Entered: 01/16/2019)
69 CLERK'S JUDGMENT, that pursuant to Rule 12(b)(1), Defendants' motion to dismiss is granted; and that YAFFEDs motion for a preliminary injunction is denied. Signed by Douglas C. Palmer, Clerk of Court, By J. Poveda, Deputy Clerk on 1/17/2019. (Layne, Monique) (Entered: 01/17/2019)

 
 Case 1:18-cv-04167 Document 1 Filed 07/23/18 Page 1 of 35 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

YOUNG ADVOCATES FOR FAIR

)

EDUCATION,

)

)

Plaintiff,

)

)

v.

)

)

) Complaint for a Civil Case

ANDREW CUOMO,

)

in his official capacity as Governor of the State

Case No. 18 CV 4167

of New York,

BETTY ROSA, in her official capacity as

Jury Trial Demanded

Chancellor of the Board of Regents of the State

of New York,

MARYELLEN ELIA, in her official capacity as

Commissioner of the New York State Education

Department,

Defendants.

Case 1:18-cv-04167 Document 1 Filed 07/23/18 Page 2 of 35 PageID #: 2
Plaintiff Young Advocates for Fair Education (“YAFFED”), as and for their Complaint against Defendants Andrew Cuomo, Betty Rosa, and MaryEllen Elia in their capacity as New York State officials who administer the New York State educational system, (collectively, “Defendants”), allege as follows:
NATURE OF THE ACTION 1. On April 12, 2018, New York Governor Andrew Cuomo signed into law a budget that included an amendment to New York Education Law, Section 3204, section 2 that created a carve-out for the benefit of certain ultra-Orthodox Jewish non-public schools, giving them special treatment under the law (the “Felder Amendment”). The text of the Felder Amendment, Part SSS of N.Y. Senate Bill S7509C (Mar. 30, 2018) is attached as Exhibit 1. 2. New York State Education Law, Section 3204, mandates that children in nonpublic schools receive instruction that is “substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” This statute requires these non-public schools to meet certain minimum educational standards and applies to non-public religious schools as well as independent secular schools. 3. The Felder Amendment creates a dual oversight regime to determine whether a non-public school provides a “substantially equivalent” education for the nearly 1,700 nonpublic schools in New York: one set of considerations applying to ultra-Orthodox Jewish schools—known as yeshivas and sometimes referred to as mosdos—as determined by the New York State Education Department (“NYSED”) Commissioner; and another set of considerations for all other non-public schools, including independent schools and other religious schools, as determined by local school districts and boards.
2

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4. Upon information and belief, many of the nearly 115,000 children who are currently educated in ultra-Orthodox Jewish non-public schools in New York State attend schools that do not provide sufficient instruction in secular subjects as required by the law.
5. Plaintiff YAFFED was formed in 2012 with a mission to ensure that all students receive the critical tools and skill sets needed for long-term personal growth and self-sufficient futures. It has been pressing New York City Department of Education (“NYCDoE”) and NYSED to enforce the standards in Section 3204 for ultra-Orthodox non-public schools in New York.
6. As a result of YAFFED’s work, NYCDoE announced in July 2015 that it would investigate a number of yeshivas in New York City identified by YAFFED as not meeting state standards. On information and belief that investigation is ongoing, although the NYCDoE has yet to release any information or report of its investigation. YAFFED continues to press for information to be released regarding NYCDoE’s investigation.
7. On information and belief, as recently as December 2017, NYSED has been revising the existing guidelines for determining substantial equivalency under the Education Law to clarify how the substantial equivalence requirement should be enforced by local school districts.
8. The Felder Amendment describes the schools that fall within the newly created carve-out in very specific terms: non-profit schools with a bi-lingual education program that extends from 9:00 a.m. until 4:00 p.m. for grades 1 through 3; until 5:30 p.m. for grades 4 through 8; and until 6:00 p.m. for high school. The requirements for high school only extend to programs established for children who have graduated from a middle school that meets this
3

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criteria, i.e., elementary-school yeshiva graduates. Upon information and belief, only ultraOrthodox Jewish schools, including Hasidic yeshivas, meet this criteria.
9. Furthermore, the new standards created by the carve-out in the Felder Amendment are vague and impose new considerations only for ultra-Orthodox non-public schools that appear substantially relaxed as compared to the guidelines issued by NYSED for all non-public schools.
10. Guidelines issued or used by relevant governmental agencies, such as NYSED or NYCDoE, based on Section 3204 as amended will require additional and different advocacy, strategies, and methods by YAFFED to combat the relaxed standards now recited in the Felder Amendment.
11. The Felder Amendment is the brain child of State Senator Simcha Felder, a New York State Senator for the 17th District,1 and certain ultra-Orthodox Jewish community leaders who oppose oversight, including Grand Rabbi Aaron Teitelbaum, the chief rabbi and spiritual leader of the Satmar ultra-Orthodox community in Kiryas Joel, New York. Upon information and belief, Rabbi Teitelbaum has been and is the chief authority in ultra-Orthodox parochial schools in Kiryas Joel. Rather than go through the normal legislative process, the Felder Amendment is the result of a deliberately timed plan to hijack the negotiations for the New York state budget at the end of March 2018 and maximize the leverage held by Senator Felder as a critical vote in order for the Republicans in the New York Senate to pass the budget.
12. On information and belief, there is no secular legislative purpose for the Felder Amendment and its principal effect promotes the religious beliefs of the ultra-Orthodox Jewish community with respect to education. On information and belief, the intent of this amendment 1 The 17th Senate District encompasses the Brooklyn neighborhoods of Midwood, Flatbush, Borough Park, Kensington, Sunset Park, Madison, and Bensonhurst.
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was to inoculate the ultra-Orthodox Jewish non-public schools from scrutiny. On information and belief, the Felder Amendment was written such that only ultra-Orthodox Jewish non-public schools fit the recited criteria for this carve-out.
13. Certain influential leaders of the New York ultra-Orthodox community have admitted in the press that the purpose of this amendment is to expressly carve out and benefit these ultra-Orthodox Jewish non-public schools.
14. On information and belief, legislators have confirmed in public statements the purpose of the Amendment, including John Flanagan, the Majority Leader in the New York State Senate, who has stated that Section 3204, as amended, benefits yeshivas; and Senator Felder, who has stated that his intent was to have the law benefit these yeshivas.
15. The Felder Amendment, if allowed to stand, frustrates the mission of YAFFED, which is to ensure that all students within the ultra-Orthodox community receive the critical tools and skill sets needed for long-term personal growth and self-sufficient futures. For example, on information and belief, the state and local agencies tasked with enforcing Section 3204 will pause, halt, or abandon their investigations because of this Amendment. Upon information and belief, state and local agencies will need time to evaluate whether schools they investigate are covered by the carve-out and the question of who can determine whether yeshivas within the State are providing substantially equivalent instruction. And even if the NYSED were to issue revised guidelines, its guidelines will either take into account the new standards prescribed by the Felder Amendment, or, if not, will be subject to challenge based on the Felder Amendment.
16. The Felder Amendment violates the Establishment Clause of the first amendment to the U.S. Constitution.
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17. YAFFED seeks a declaration that the Felder Amendment is unconstitutional and an injunction preventing Defendants Cuomo, Rosa, and Elia, in their official capacity as Governor of New York, Chancellor of the New York State Board of Regents (“Board of Regents”), and NYSED Commissioner, from taking actions consistent with the Felder Amendment and to maintain the status quo.
PARTIES 18. Plaintiff YAFFED is a nonprofit organization based in New York City, New York, with offices at 25 West 45 Street, New York, New York. YAFFED is an advocacy group committed to improving educational curricula within ultra-Orthodox schools. YAFFED believes that every child is entitled to a fair and equitable education that is in compliance with the law. YAFFED’s mission is to ensure that all students receive the critical tools and skillsets needed for long-term personal growth and self-sufficient futures. 19. YAFFED’s work involves raising awareness about the importance of general studies education and encouraging elected officials, state and local agency officials, and the leadership of the ultra-Orthodox world to act responsibly in preparing their youth for economic sufficiency and for broad access to the resources of the modern world. YAFFED encourages compliance with relevant state guidelines for education while maintaining respect for the primacy of Judaic studies and the unique cultural and religious values of the ultra-Orthodox community. 20. The State of New York (the “State”) is responsible for the operation, financing, and administration of the New York State public school system. Defendant Andrew Cuomo is the Governor of the State of New York and has among his responsibilities the presentation of budget bills for consideration by the New York legislature and signing laws, as well as the
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enforcement of existing law. Plaintiff brings this action against Governor Cuomo in his official capacity.
21. The Board of Regents is a governmental agency responsible for determining the educational policies of the State of New York and establishing “rules for carrying into effect the laws and policies of the state, relating to education.” N.Y. Educ. Law § 207. The Board of Regents serves as the head of NYSED and must appoint a Commissioner of Education to be the chief administrative officer of the department. N.Y. Const. art. V, § 4; see also N.Y. Educ. Law § 101. The Board of Regents also has the power to remove the Commissioner. N.Y. Const. art. V, § 4. Defendant Betty A. Rosa is the Chancellor of the Board of Regents. Chancellor Rosa is responsible for the general supervision of all educational activities within the state, including determining the educational policies of the state and carrying into effect the educational law and policies of the state. See N.Y. Educ. Law § 207; N.Y. Educ. Dep’t Bd. Of Regents (2015), http:www.regents.nysed.gov. Chancellor Rosa also “may visit, examine into and inspect, any institution in the university and any school or institution under the educational supervision of the state, and may require, as often as desired, duly verified reports therefrom giving such information and in such form as the regents or the commissioner of education shall prescribe.” N.Y. Educ. Law § 215. Plaintiff brings this action against Chancellor Rosa in her official capacity. She is located at the Board of Regents, State Education Building, 89 Washington Avenue, Room 110, Albany, New York 12234.
22. The New York State Education Department (“NYSED”) is a governmental agency responsible for the “general management and supervision of all public schools and all of the educational work of the state.” N.Y. Educ. Law § 101. NYSED implements the policies of the Board of Regents under the direction of the Commissioner of Education. NYSED is also
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responsible for supervising New York state’s nonpublic schools. N.Y. Comp. Codes R. & Regs. tit. 8, § 100.2 (2016). Defendant MaryEllen Elia is the New York State Commissioner of Education and President of the University of the State of New York. As the chief executive of NYSED, Commissioner Elia is responsible for enforcing all “laws relating to the educational system of the state” and executing “all educational policies determined upon by the board of regents.” N.Y. Educ. Law § 305. Commissioner Elia has the duty and power to supervise “the enforcement of part one of this article [Article 65]” which includes New York state education law section 3204. Id. § 3234. Commissioner Elia is also responsible for identifying failing and persistently failing New York schools. N.Y. Comp. Codes R. & Regs. Tit. 8, § 100.19(b) (2016). Plaintiff brings this action against Commissioner Elia in her official capacity. She is located at NYSED, State Education Building, 89 Washington Avenue, Room 110, Albany, New York 12234.
JURISDICTION AND VENUE 23. This Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the U.S. Constitution and the laws of the United States. 24. Jurisdiction is also proper over Plaintiff’s claims under 28 U.S.C. §§ 2201-2202 because Plaintiff seeks a declaration that the Felder Amendment is unconstitutional, permitting Plaintiff to continue its mission without diverting resources to address the unconstitutional Felder Amendment. 25. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to the claims occurred within the judicial district.
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FACTUAL BACKGROUND A. Education of Minors in New York 26. The “Education Clause” in Article XI, section 1 of the New York State Constitution, provides that “[t]he legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.” N.Y. Const. art. XI, § 1. This provision is not a mere platitude or an abstract ambition that the State has no obligation to fulfill. It is a mandate the State is constitutionally obligated to execute and accomplish for all New York children. It ensures the availability of a “sound basic education” to all children in the State. Board Of Education v. Nyquist, 57 N.Y.2d 27 (1982). It is a “constitutional floor with respect to educational adequacy.” Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307 (1995). In Campaign for Fiscal Equity, the N.Y. Court of Appeals upheld the basic rights of children to obtain “the basic literacy, calculating, and verbal skills necessary to enable children to eventually function productively as civic participants capable of voting and serving on a jury.” Id. at 316. 27. New York’s Compulsory Education Law requires every child in the state between the ages of 6 and 16 attend school or receive home instruction. Although it compels instruction, the law permits instruction in non-public schools, such as independent secular schools or religious schools. N.Y. Educ. Law § 3205. The requirements of the New York Compulsory Education Law apply regardless of where a child receives instruction, at a public school, nonpublic school or at home. 28. Section 3204 of the New York Compulsory Education Law dictates the “Instruction Required” of all students, with Subsection 2 specifying the quality and language of instruction. For example, it requires instruction by a competent teacher. Id. § 3204(2). It requires instruction using English and sets forth accommodations for bi-lingual instruction. Id.
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29. Of particular relevance here, Section 3204 subsection 2 states in relevant part: “Instruction given to a minor elsewhere than at a public school shall be at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” Id. § 3204(2) (emphasis added). The requirement of “substantial equivalence” recited in the law existed prior to the Felder Amendment and applied to all instruction “elsewhere than at a public school.” Id.
30. NYSED has stated in its Guidelines for Determining Equivalency of Instruction in Nonpublic Schools2 that:
The object of the compulsory attendance law is to see that children are not left in ignorance, that they receive from some source the instruction that will prepare them for their place in society. If a child attends a nonpublic school or is being educated at home, the board of education of the school district in which the child resides must be assured that the child is receiving instruction which is substantially equivalent to that provided in the public schools. Thus, the board’s responsibility is to the children living in the district; it has no direct authority over a nonpublic school. 31. For public schools, the curriculum for grades one through eight must include instruction in the subject areas of arithmetic, reading, spelling, writing, the English language, geography, United States history, civics, hygiene, physical training, the history of New York State, and science. N.Y. Educ. Law § 3204(3). 32. Beyond the first eight years, i.e., in high school, academic instruction must include instruction in the English language and its use, civics, hygiene, physical training, and American history including the Declaration of Independence and the Constitution of the United States. Id.
2 Available online at http://www.p12.nysed.gov/nonpub/guidelinesequivofinstruction.html and excerpt attached as Exhibit 2.
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33. Public schools are also required to offer instruction in patriotism and citizenship and in certain historic documents. N.Y. Educ. Law § 801(1)-(2). Similar instruction is required in private schools. Id. “If such courses are not so established and maintained in a private school, attendance upon instruction in such school shall not be deemed substantially equivalent to instruction given to pupils in the public schools of the city or district in which such pupils reside.” Id.
34. The Education Law also requires instruction in health and hygiene but provides exceptions where instruction may conflict with religious beliefs. N.Y. Educ. Law § 804, 3204(5). No such exceptions exist for the instruction set forth in Section 3204(3). Other areas of instruction required in public school include physical education, N.Y. Comp. Codes R. & Regs. tit. 8, § 135.4 (2015), fire and arson prevention, N.Y. Educ. Law § 808, highway safety and traffic regulations, N.Y. Educ. Law § 806(1).
35. Upon information and belief, the Felder Amendment does not change any of the required instruction in public schools in the Compulsory Education Law.
B. Education in Ultra-Orthodox Yeshivas in New York 36. Orthodox Judaism is a general term for the most strictly traditional denominations of Judaism. A sub-sect of Orthodox Judaism are the “haredim,” who are Jews who continue to maintain traditional practices without regard to the modern world. In this complaint, we will refer to haredim as “ultra-Orthodox.” The largest sub-group of haredim are known as Hasidim or Hasidic Jews. 37. A large number of haredim reside in Brooklyn, in this district. Another large number of Hasidic haredim reside in the village of Kiryas Joel, in Orange County, New York. As the U.S. Supreme Court described the community:
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The residents of Kiryas Joel are vigorously religious people who make few concessions to the modern world and go to great lengths to avoid assimilation into it. They interpret the Torah strictly; segregate the sexes outside the home; speak Yiddish as their primary language; eschew television, radio, and English-language publications; and dress in distinctive ways that include head coverings and special garments for boys and modest dresses for girls. Children are educated in private religious schools, most boys at the United Talmudic Academy where they receive a thorough grounding in the Torah and limited exposure to secular subjects, and most girls at Bais Rochel, an affiliated school with a curriculum designed to prepare girls for their roles as wives and mothers. See generally W. Kephart & W. Zellner, Extraordinary Groups (4th ed. 1991); I. Rubin, Satmar, An Island in the City (1972). Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 691 (1994). 38. According to a report from the Avi Chai Foundation,3 as of 2013, more than 52,000 children were enrolled in Hasidic schools in New York City. According to a 2011 report on the New York Jewish community by the UJA Federation of New York, approximately 94% of Hasidic residents in the eight counties in the New York City area (New York, Kings, Queens, Richmond, Bronx, Westchester, Nassau and Suffolk) live in Brooklyn. See Steven M. Cohen, et al., Jewish Community Study of New York: 2011 Comprehensive Report, UJA Federation of N.Y. (June 2012).4 On information and belief, that population has been growing and continues to grow. 39. Hasidic parents typically send their children to parochial non-public schools, where they can ensure their children’s social and cultural interactions are consistent with ultraOrthodox norms.
3 See Marvin Schick, A Census of Jewish Day Schools in the United States 2013-2014, Avi Chai Foundation (October 2014), at 31, excerpts attached as Exhibit 3. 4 Excerpts of the Report are attached as Exhibit 4 and the full report is available at http://www.jewishdatabank.org/Studies/downloadFile.cfm?FileID=2852.
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40. As of June 2018, there are 273 Orthodox yeshivas registered on the NYSED Directory of Non-public School Administrators.5 211 of these yeshivas are located in Kings County.
41. Although non-public schools are required by state law to provide a substantially equivalent secular education, on information and belief, almost no secular education is provided at most Hasidic ultra-Orthodox Jewish non-public schools, particularly to male students. The language of instruction is almost exclusively Yiddish, the same language the students speak at home, and sometimes includes some Hebrew and/or Aramaic texts. From age 7 to age 12, on information and belief, the average Hasidic boy receives instruction in basic English reading, writing, and arithmetic, for at most 90 minutes a day (at the end of the school day), four days a week. Often the period of time set aside for secular studies is treated as free time for restless students. Textbooks are heavily censored, when they are used at all. Teachers in Hasidic yeshivas are often unqualified to teach secular studies, as they barely know English themselves. Even English classes may be taught primarily in Yiddish.
42. Once a male student in the Hasidic community enters high school, he typically spends twelve to fourteen hours a day receiving instruction only in Judaic studies, but receives no secular education in school.
43. In a recent survey conducted by plaintiff of yeshiva graduates and parents of current students, including those who attended Hasidic yeshivas in New York City, not a single respondent said that their school provided instruction in every subject required by the state. Only about 65% of elementary school aged children who attended Hasidic yeshivas in New York City reported having received some education in English reading, in English writing, or in arithmetic. 5 The data is available at http://www.nysed.gov/admin/bedsdata.html. The numbers reflect the number of entries with Institution Type 22 (Jewish-Orthodox).
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Less than a quarter reported learning U.S. History, and only a few learned New York history. Very few Hasidic boys in the survey received instruction in science or geography. None recalled any education in art or music. Of the respondents who attended elementary-level yeshivas for boys in New York City, just over a quarter said they received no secular education at all in elementary school. At the high school level, only a quarter of respondents said they received any secular education, which was typically optional and often discouraged by the school. Thus a substantial majority of high school aged respondents received no secular education of any kind.
44. These results are confirmed by anecdotal evidence from the community. In a recent news article, three former students recounted the lack of education and the resulting struggles to catch up after high school. In one case, the former student was also a parent of three children enrolled in ultra-Orthodox schools. Yoel Falkowitz, a member of the Satmar ultraOrthodox community in Monsey, New York states in the article that “I never heard the word ‘algebra’ until I was an adult. I only know addition, subtraction, and multiplication.” He states that he had to teach himself reading and writing in English. He states in the article that his son’s experience at a yeshiva in Monsey is worse than his experience. While he acknowledges that secular instruction at his son’s school is provided for one hour, he complains that the yeshiva hires unqualified former students as teachers who “can’t string a decent sentence together.”6
45. Notably, as discussed below, even Hasidic ultra-Orthodox community leaders have conceded that many Hasidic ultra-Orthodox Jewish yeshivas are not substantially equivalent to the required instruction in public schools under New York law as it existed prior to the Felder Amendment.
6 Doree Lewak, These Taxpayer-Funded Jewish Schools Are Dooming Young Men to Poverty, N.Y. Post (May 12, 2018), attached as Exhibit 5.
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46. The unavailability of adequate secular instruction for these students in certain Hasidic ultra-Orthodox Jewish yeshivas results in poor performance on New York standardized tests, known as Regents tests (to the extent tests are taken by these students). Many of these schools do not administer Regents tests nor provide diplomas. As a result, upon information and belief, graduates find it extremely challenging to pursue post-secondary education to attain the skills they need.
47. This puts Hasidic families at high risk for poverty and reliance upon government assistance. In a 2011 study on poverty published by the UJA-Federation of New York analyzing an eight-county New York area that includes New York City, approximately 45% of Hasidic households in New York were classified as poor and another 18% were classified as near poor. See Jacob B. Ukeles, et al., Jewish Community Study of New York: 2011 Special Report on Poverty, UJA Federation of N.Y. (revised ed. June 2013), at 47.7 The study noted “a very strong relationship between secular educational attainment and poverty” and that “[l]evels of educational attainment have decreased significantly for poor Jewish households since 2002,” as of the report’s issuance in 2011. Id. at 38. Upon information and belief, those levels have not improved since 2011.
48. Upon information and belief, Hasidic communities in Brooklyn have a greater percentage of families receiving cash assistance, food stamps, public health care coverage, and Section 8 housing vouchers, as compared to Brooklyn and New York City as a whole. Upon information and belief, the percentage of people in a heavily Hasidic district of Brooklyn utilizing public income support, such as cash assistance (TANF), Supplemental Security Income (SSI), and Medicaid, has increased in the last decade as the Hasidic population grew rapidly. 7 Excerpts of the Report are attached as Exhibit 6 and available at https://www.ujafedny.org/assets/785329.
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49. Upon information and belief, the Hasidic population in New York City is expected to continue to grow rapidly, with especially high growth among children and young people, so that by 2030 up to one-eighth of the city’s schoolchildren, and up to one-third of Brooklyn’s, may be Hasidic.
50. Upon information and belief, yeshivas benefit from hundreds of millions of taxpayer dollars annually. Upon information and belief, in addition to federal funds, state funding is provided to yeshivas through, among other programs, Academic Intervention Services (AIS), Nonpublic School Safety Equipment (NPSE), Mandated Services Aid (MSA), and the Comprehensive Attendance Program (CAP). Upon information and belief, many if not most Hasidic ultra-Orthodox yeshivas in this District receive significant funding from the statefunded, city-run Child Care Block Grant Subsidy Program.
51. The lack of secular education in Hasidic yeshivas has been public knowledge for decades. In 1994, the New York Times published an article on Hasidic yeshiva Olohei Torah that pointed out that the school “spurns all secular studies for its 340 young men, ages 13 to 20,” and “boys are expected to learn any science, mathematics or history on their own.”8
C. YAFFED’s Work Prior to the Felder Amendment 52. Over the past 6 years, YAFFED has zealously advocated for yeshiva students’ right to education. YAFFED’s work includes advocacy aimed at both New York State and New York City officials, outreach efforts aimed at the Hasidic community, and education efforts aimed at raising awareness of the issue with the general public. 53. For the first few years, YAFFED’s advocacy efforts went ignored by NYSED and the NYCDoE. YAFFED’s attempts to reach out through direct contacts and letter writing in 8 Joseph Berger, So Far From the Brooklyn Bridge: Yeshiva Spurns the Secular World, N.Y. Times, Mar. 6, 1994, at 33, 39, attached as Exhibit 7 and available at https://nyti.ms/2mfdMAf.
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2013 and 2014 went unanswered. In July 2015, however, YAFFED’s advocacy began to bear
fruit. YAFFED that month publicly issued a letter to the NYCDoE and New York City
Superintendents identifying 39 yeshivas that did not meet New York educational standards. This
letter, which was signed by 52 yeshiva graduates, parents, and teachers, urged an investigation
into the quality of secular education at these schools and asked that the NYCDoE take steps to
ensure that the students receive the education to which they are entitled. Shortly afterward,
according to public news reports, the NYCDoE confirmed that they would launch an investigation into those 39 yeshivas.9
54. In December 2015, the NYCDoE doubled down on its promise. At a meeting
between NYCDoE officials and YAFFED, the NYCDoE stated that it would interview
complainants and that a report on the investigation would be released in Spring 2016. No such
report was issued in Spring 2016, prompting YAFFED to hold a press conference on the steps of
New York City Hall, to educate the public on the City’s efforts to stall and avoid an investigation.10
9 See Amy Sara Clark, NYC to Investigate 39 Yeshivas, New York Jewish Week (July 29, 2015), http://jewishweek.timesofisrael.com/nyc-to-investigate-39-yeshivas/; Sam Sokol, New York to Investigate Haredi Schools for Lack of Secular Studies, Jerusalem Post (July 29, 2015), https://www.jpost.com/Diaspora/New-York-to-investigate-haredi-schools-for-lack-of-secularstudies-410505; Simone Wilson, NYC Investigating 40 Ultra-Orthodox Schools in Brooklyn, Windsor Terrace Patch (July 29, 2015), https://patch.com/new-york/windsorterrace/nycinvestigating-40-ultra-orthodox-schools-brooklyn, collectively attached as Exhibit 8. 10 See Kate Taylor, Group Says Politics Are Stalling New York City’s Inquiry of Yeshivas, N.Y. Times (April 6, 2016), https://www.nytimes.com/2016/04/07/nyregion/group-says-politics-arestalling-new-york-citys-inquiry-of-yeshivas.html; John V. Santore, Advocates for Brooklyn Yeshiva Reform Threaten to Sue Mayor, Williamsburg Patch (April 7, 2016), https://patch.com/new-york/williamsburg/advocates-brooklyn-yeshiva-reform-threaten-suemayor, collectively attached as Exhibit 9. See also Ben Chapman, Progressive Jewish Group Slams City Education Department Over Lack of Secular-Study Enforcement at Yeshivas, N.Y. Daily News (Apr. 8, 2016), http://www.nydailynews.com/new-york/education/jewish-groupblasts-ed-dept-yeshiva-secular-study-probe-article-1.2593486…
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55. In response to this, and other press conferences, public statements, and reports issued by YAFFED, the NYCDoE regularly issued public statements that it was investigating the yeshivas with a report forthcoming. No report was ever issued however, and according to news reports, in the three years since the initiation of the investigation, fewer than half of the yeshivas included in YAFFED’s July 2015 letter were visited by NYCDoE investigators.
56. YAFFED’s advocacy extended beyond New York City; YAFFED has also educated State officials regarding the sub-standard secular education provided by ultra-Orthodox yeshivas and advocated for laws or regulations which would provide more tools for regulators to ensure that the yeshiva students were receiving a substantially equivalent education. As noted by the Jewish news website The Forward in April 2016, YAFFED’s advocacy efforts resulted in two bills filed in the New York State Legislature which “seek to give teeth to existing legislation that already requires nonpublic schools to teach subjects similar to those taught in public schools.”11 The article further noted that Hasidic leaders opposed the bills, quoting Grand Rabbi Aaron Teitelbaum, the leader of the Satmar Hasidic sect based in Kiryas Joel, as stating that “If New York passes this proposed law, Lord have mercy over what will happen.”
57. Upon information and belief, YAFFED’s advocacy also resulted in plans at NYSED in late 2017 to revise the state’s guidelines to ensure that children in non-public schools receive a “substantially equivalent” education. Upon information and belief, Elia and Rosa organized this effort to revise the guidelines in part due to YAFFED’s work educating state officials regarding the failure of the ultra-Orthodox yeshivas to provide a substantially equivalent education. Rosa reportedly acknowledged that “[s]ome of the [yeshivas] do fall in the category
11 See Josh Nathan-Kazis, Satmar Rebbe Rails Against Secular Education Bill; Moderate Groups Stay Silent, Forward (May 12, 2016), https://forward.com/news/340568/satmar-rebbe-railsagainst-secular-education-bill-moderate-groups-stay-sile/, attached as Exhibit 10.
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of not fulfilling that obligation” to provide a substantially equivalent secular education.12 According to the press accounts, the chancellor of the Board of Regents, Defendant Betty Rosa, stated that she would like a draft ready in February 2018.
58. In addition to advocating at the state and local government level, YAFFED works to reach out to both the Hasidic community and the public community to educate and serve as a source of information about the issue of non-compliant Hasidic yeshivas. This education and community outreach work ranges from putting up billboards in the Hasidic community regarding the requirements that the yeshivas are supposed to—but do not—provide, to communicating regularly with members of the Hasidic community who are dissatisfied with the secular education that they received or that their children are currently receiving, to holding press conferences and releasing press statements about the failure of ultra-Orthodox yeshivas to provide a substantially equivalent education and the failure of the state and local governments to enforce its laws.
59. YAFFED’s most ambitious effort at educating the general public regarding noncompliant yeshivas was the September 2017 release of an 80-plus page report entitled The State of Education in New York City’s Hasidic Yeshivas.13 This report sought to explain the problems present in ultra-Orthodox yeshivas in New York City and contained: a primer on the Hasidic community; explanations of the New York law requiring the yeshivas to provide substantially equivalent education; information regarding the current state of education at the yeshivas and their lack of secular education; a summary of YAFFED’s advocacy and the politics underlying the city and state’s hesitance to enforce the law; and recommendations that YAFFED suggests 12 See Leslie Brody, New York State Revising Private Schools Guidelines, Wall Street Journal (Dec. 17, 2017), https://www.wsj.com/articles/new-york-state-revising-private-schoolsguidelines-1513546538. 13 Available at https://www.yaffed.org/report.
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should be made going forward. This report was widely reported on and served to further educate the general public.14
60. YAFFED’s many attempts at educating and advocating to fix sub-standard
education at Hasidic yeshivas have been time consuming and costly. From its founding in 2012
through April 2018, YAFFED has spent significant resources in furtherance of its advocacy
efforts.
D. The Effort to Exempt Ultra-Orthodox Jewish Yeshivas from Enforcement of Section 3204
61. By 2018, upon information and belief, leaders within the ultra-Orthodox
community in New York State, including Grand Rabbi Aaron Teitelbaum, who leads the Satmar
Hasidic sect in Kiryas Joel and oversees the Hasidic yeshivas in Kiryas Joel as well as some
Hasidic yeshivas in Brooklyn, grew more concerned that the state and city would soon begin
actually overseeing ultra-Orthodox yeshivas, revealing that many are not offering a
“substantially equivalent” education. These efforts resulted ultimately in the unconstitutional
Felder Amendment to Section 3204 of the Education Law.
62. In an interview published in April 2018, after the Felder Amendment had passed,
Rabbi Teitelbaum acknowledged the motivation behind efforts to amend Section 3204 and
recounted the events leading to the passing of the Felder Amendment. See Rabbi Ytzchak
14 See Selim Algar, De Blasio, DOE Are Ignoring Subpar Education at Yeshivas: Advocacy Group, New York Post (Sept. 6, 2017), https://nypost.com/2017/09/06/de-blasio-doe-areignoring-subpar-education-at-yeshivas-advocacy-group/; Ben Chapman & Reuven Blau, Yeshivas Are Breaking the Law by Skimping on English Instruction, Secular School Supporter Says, N.Y. Daily News (Sept. 6, 2017), http://www.nydailynews.com/new-york/yeshivas-breaklaw-english-instruction-opponents-article-1.3474862; Kate Taylor, Critics Say City Has Not Investigated Yeshivas, Breaking Pledge, N.Y. Times (Sept. 6, 2017), https://www.nytimes.com/2017/09/06/nyregion/critics-say-city-has-not-investigated-yeshivasbreaking-pledge.html?_r=0; Leslie Brody, Concerns Persist About Curriculum Standards at Orthodox Yeshivas, Wall St. J. (Sept. 7, 2017, 6:36 PM), https://www.wsj.com/articles/concernspersist-about-curricular-standards-at-orthodox-yeshivas-1504823785.
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Frankfurter, Securing Jewish Education: A conversation with Satmar Rebbe Rav Aharon
Teitelbaum, Shlita, Ami Magazine, Apr. 11, 2018, at 66–79 (hereinafter “Ami”), attached as
Exhibit 11. Upon information and belief, Rabbi Teitelbaum has made similar statements in
public speeches (in Yiddish).
63. Rabbi Teitelbaum acknowledged that the ultra-Orthodox yeshivas in his
community do not provide “substantially equivalent” education as required under Section 3204
as it existed prior to April 2018:
“All of the mevinim15 know the gevaldike16 thing that took place over here for all of the talmidim17 of every single Talmud Torah.18 In the past, every child violated the law, and if it would have ended up in court there wouldn't have been an answer as to why the law wasn’t adhered to.” [Ami at 69]
“Eventually, the City sent out letters to 39 mosdos in New York City. For those who got it, it was choshech.19 What could they do? These letters meant investigations, and there’s no way to lie or get around it either.” [Ami at 74].
64. Rabbi Teitelbaum also acknowledged that the efforts of NYSED to investigate
complaints about instruction at the ultra-Orthodox yeshivas were causing distress within the
community:
“But then these people decided to take it higher and they went to the State. The New York State Department of Education [sic] took their complaints very seriously and they started working on ways to force the mosdos to comply with the laws. They were working on setting up an inspection system and a mechanism to make it work. We were able to see that it was getting worse and worse.” [Ami at 74.]
15 On information and belief, “mevinim” is understood to mean “those in the know” or “experts” in Yiddish. 16 On information and belief, “gevaldike” is understood to mean “amazing” in Yiddish. 17 On information and belief, “talmidim” is understood to mean “students” in Hebrew. 18 On information and belief, “Talmud Torah” is understood in Yiddish to mean ultra-Orthodox schools for boys who are high school age. Talmud Torah are sometimes also referred to as mosdos or yeshiva. 19 On information and belief, “choshech” is understood to mean “darkness” in Hebrew.
21

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“It was very disconcerting, because the Education Department was expected to release its guidelines to the Talmud Torahs any day, declaring what they have to teach and what would happen if they wouldn't comply. Every day that passed without it, I said, ‘Baruch Hashem,20 another day passed.’ The Eibershter21 helped and it was held up.” [Ami at 75.] 65. Upon information and belief, the leaders within the ultra-Orthodox community
who opposed oversight by the State determined that changing the law was the only way to avoid
oversight, a path that they recognized was difficult under the normal legislative process. Rabbi
Teitelbaum acknowledged this in his interview:
“They knew that there was a way out—by passing a new law that will amend the existing law—but they didn't see how they could make that happen. A law has to be submitted to the Assembly and to the Senate, it has to pass both chambers, and then it has to be signed by the governor. In order for such a law to even begin the process of being voted on, it must first be passed by a committee in the Assembly, which is controlled by the Democrats, while the Senate is controlled by the Republicans. The Democrats are liberals, and the liberal charge is that everyone must learn all of these subjects. “Everyone said that any efforts to produce such a law would fail because it would never pass the committee. They would leave it on the table and it would never get anywhere, because the Democrats would never allow such a law to pass. It was a big problem. In the Senate it would have a chance, but not in the Assembly.” [Ami at 74.] 66. Upon information and belief, community activists within the Hasidic ultra-
Orthodox community, certain leaders of the community, and Felder planned to amend the law by
circumventing the normal legislative process and having it passed as part of the state budget,
which was required to be passed by April 1, 2018. This was made possible because Felder, as a
20 On information and belief, “Baruch Hashem” is understood to mean “Thank God” in Hebrew. 21 On information and belief, “Eibershter” is understood to mean “the one above” and is a common reference to “God” in Yiddish.
22

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Democrat who has caucused since 2012 with Republicans in a state Senate that is almost evenly split between the two parties, holds immense influence.22
67. Rabbi Teitelbaum confirmed these facts:
“Then the idea came up to tie into the budget. This was something that came up months ago.”
“This was the Rebbe’s idea?” [asked Rabbi Frankfurter.]
“No. It was Reb Yaakov Sofer’s idea. The plan was to use the political situation for our benefit. Reb Yaakov made a cheshbon23 that the budget has to be passed by April 1, and it's of paramount importance to the governor to have it passed, because his prestige is at stake if it isn’t passed on time. Therefore, he told Simcha Felder that if he would block the budget, the governor would have to get involved, and then it would be possible to have the law changed for our benefit.
“I spoke to Simcha Felder then and I told him to keep it secret and wait until the last minute, because otherwise it would have to go through the Assembly and it wouldn’t even make it past the committee stage, v’sham tikaveir.24 He managed to keep it secret from Chanukah-time, when we had this conversation, until now. The Senate majority agreed to go along with it, because they were very willing to fight with the State Assembly.” [Ami at 74-75.]
68. On January 18, 2018, Defendant Governor Andrew Cuomo submitted his
Executive Budget to the New York state legislature, along with any related appropriation,
revenue, and budget bills. Part of the budget submitted that day was Budget Bill S7509. That
bill did not include any amendments to Section 3204 of the Education law.
69. On February 16, 2018, an amended/substituted version of S7509 was submitted.
This amended/substituted bill did not include any amendments to Section 3204 of the Education
22 Senator Felder is a registered Democrat who has caucused with Republicans, helping them maintain control of the Senate. Currently in New York State, there are thirty-one Democratic senators and thirty-one Republican senators – making Senator Felder’s vote a powerful swing vote. 23 On information and belief, “cheshbon” is understood to mean “calculation” in Hebrew. 24 On information and belief, “v'sham tikaveir” is understood to mean “and it would be buried there” in Hebrew.
23

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law. Likewise, a month later on March 13, 2018, another amended/substitution version of S7509 was submitted which again proposed no amendments to Section 3204 of the Education law.
70. Instead of seeking revision of Section 3204 either through normal order or through earlier versions of S7509, on information and belief, Senator Felder waited until he knew that minimal discussion over his amendment could occur. Knowing that the State’s budget had to be passed by April 1, 2018, in the days leading up to the deadline, Senator Felder demanded the inclusion of an amendment to Section 3204 of the Education law into S7509. Word soon spread that the budget was being held hostage. As reported by Politico, Senator Felder “was pushing for yeshivas to be exempted from review by education officials” which caused “[b]udget negotiations [to] stumble” starting on March 26.25
71. Upon information and belief, in an effort to solve the gridlock, Defendant Cuomo reached out to Senator Felder and, as a result, discussed with Rabbi Teitelbaum the potential amendment.26 Senator Felder’s plan was ultimately successful. Senate Budget bill S7509 was amended on March 30, 2018 to include part SSS, which reflected the Felder Amendment creating the carve-out for ultra-Orthodox Jewish yeshivas for determining substantial equivalence in instruction. The Felder Amendment was not debated on the floor nor evaluated by the Finance Committee, nor provided to the public with an opportunity to comment. Instead the Felder Amendment was included in the budget bill such that the legislature was forced to either accept the carve-out or reject wholesale the state’s budget.
25 See Eliza Shapiro, Yeshivas in the Budget, Politico (Mar. 28, 2018), https://www.politico.com/states/new-york/newsletters/politico-new-yorkeducation/2018/03/28/yeshivas-in-the-budget-048427. 26 See Zach Fink, Departure Lounge, State of Politics (Jul. 10, 2018, 1:54 PM), http://www.nystateofpolitics.com/2018/07/departure-lounge-2/, attached as Exhibit 12.
24

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72. Some members of the legislature expressed their displeasure with these tactics. Assemblymember Charles Barron noted that the “Yeshiva schools was a big issue that held up” the budget, arguing that “they should be held to the same standard as every other private school that’s getting money from th[e] state no matter what one Senator says.”27 Another Assemblymember, Deborah Glick, noted that the Felder Amendment would lead to a “less vigorous education for some students.”28
73. On March 30, 2018, the amended bill S7509C passed the Senate and was delivered to the Assembly where it was passed as assembly bill A9509C. The Governor signed the budget bill on April 12, 2018, thereby enacting the Felder Amendment.
E. The Felder Amendment to Section 3204 74. The Felder Amendment added language to Section 3204 that defined “substantially equivalent” as it applied to certain non-public schools and charged the Commissioner of NYSED with enforcing Section 3204 for those schools. A copy of the text of Part SSS of budget bill S7509C reflecting the Felder Amendment is attached to this complaint as Exhibit 1.29 75. The Felder Amendment has three basic parts:
a) It adds criteria for substantial equivalence for certain schools for grades 1 through 8. Educ. Law § 3204(2)(ii) (as amended April 12, 2018).
b) It adds criteria for substantial equivalence for certain high schools for students who have graduated from elementary schools covered by 3204(2)(ii). Educ. Law § 3204(2)(iii) (as amended April 12, 2018).
27 Videotape: New York State Assembly, March 30, 2018 Session Part 4, available at http://nystateassembly.granicus.com/MediaPlayer.php?view_id=7&clip_id=4655&meta_id=487 01, at 21:30-21:50. 28 Id. at 33:45-43:10. 29 Available at https://www.nysenate.gov/legislation/bills/2017/s7509.
25

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c) It provides the Commissioner with the authority to determine if schools meet subsection (ii) and (iii) as amended. Educ. Law § 3204(2)(v).
76. Under the Felder Amendment, subsection (ii) applies to non-public elementary
and middle schools that are non-profit corporations, have a bi-lingual program, and have an
education program that extends from 9:00 a.m. to no earlier than 4:00 p.m. for grades 1-3 and to
no earlier than 5:30 p.m. for grades 4-8. Upon information and belief, no non-public schools in
New York state meet this description other than ultra-Orthodox Jewish elementary and middle
school yeshivas.
77. Under the Felder Amendment, NYSED’s evaluation of “substantial equivalence”
under Section 3204 of the non-public elementary and middle schools subject to subsection (ii)
shall include consideration of:
if the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students, taking into account the entirety of the curriculum, over the course of elementary and middle school, including instruction in English that will prepare pupils to read fiction and nonfiction text for information and to use that information to construct written essays that state a point of view or support an argument; instruction in mathematics that will prepare pupils to solve real world problems using both number sense and fluency with mathematical functions and operations; instruction in history by being able to interpret and analyze primary text to identify and explore important events in history, to construct written arguments using the supporting information they get from primary source material, demonstrate an understanding of the role of geography and economics in the actions of world civilizations, and an understanding of civics and the responsibilities of citizens in world communities; and instruction in science by learning how to gather, analyze and interpret observable data to make informed decisions and solve problems mathematically, using deductive and inductive reasoning to support a hypothesis, and how to differentiate between correlational and causal relationships. Section 3204(2)(ii) (as amended) (emphasis and format added).
26

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78. Subsection (ii) of the Felder Amendment provides a more limited list of subjects for which instruction is considered to determine substantial equivalence, as compared to the current NYSED Guidelines, which also require instruction in spelling, music, health education, physical education, visual arts, practical arts, home and career skills, and library and information skills.
79. Under the Felder Amendment, subsection (iii) applies to non-public high schools established for pupils who have graduated from schools that meet subsection (ii) that are nonprofit corporations, have a bi-lingual program, and have an education program that extends from 9:00 a.m. to no earlier than 6:00 p.m.
80. Upon information and belief, no non-public high schools in New York meet this description other than ultra-Orthodox Jewish yeshivas for high school.
81. Under the Felder Amendment, evaluation of “substantial equivalence” under Section 3204 of the non-public high schools subject to subsection (iii) by NYSED shall consider: “if the curriculum provides academically rigorous instruction that develops critical thinking skills in the school’s students, the outcomes of which, taking into account the entirety of the curriculum, result in a sound basic education.”
82. Notably, subsection (iii) does not require instruction in English or any subjects required by the current NYSED guidelines for substantial equivalence in non-public schools. Upon information and belief, subsection (iii) is intended to allow the use of instruction in Judaic studies during high school to help determine whether instruction is “substantially equivalent” even if the subject areas required for public schools are not taught.
83. The Felder Amendment is unclear as to whether the enumerated subjects and areas for consideration therein are intended to replace or supersede existing NYSED guidelines.
27

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Upon information and belief, this lack of clarity will be used by those opposed to reform to argue that any guidelines or requirements of subjects other than those enumerated in the Felder Amendment need not be met.
84. Leaders in the ultra-Orthodox Jewish communities in which these schools were established as well as legislators like Senator Felder and Senate Majority Leader John Flanagan30 have all admitted in public statements that the Felder Amendment is meant to apply only to the specific parochial non-public ultra-Orthodox yeshivas.
85. For example, Senator Flanagan sponsored a bill on June 11, 2018 that attempted to further amend Section 3204 to remove responsibility for oversight from the Commissioner and place it instead on a yet to be named accreditation agency. See Senate Bill No. S8992 (June 11, 2018).31 In a statement issued the next day, Senator Flanagan described the proposed change to the language added by the Felder Amendment by making clear that the amended section expressly benefited yeshivas:
In addition, we are protecting students whose parents are making a choice to send their children to a yeshiva. We recognize that SED is not equipped to regulate these schools, and therefore we do not require them to do so, but we do ensure that SED maintains oversight of these schools. And, to address concerns raised by some that there are no repercussions for noncompliance, we have added new transparency and accountability measures. See Statement From Senate Majority Leader John J. Flanagan Regarding Education Issues (Jun. 12, 2018).32 The bill did not pass the Assembly and was not enacted.
30 Senator Flanagan is a New York State Senator for the 2d Senate District, which includes the Town of Smithtown and portions of the Towns of Brookhaven and Huntington. He is the Majority Leader and Temporary President of the New York Senate. 31 Attached as Exhibit 13 and available at https://www.nysenate.gov/legislation/bills/2017/s8992. 32 Attached as Exhibit 14 and available at https://www.nysenate.gov/newsroom/pressreleases/john-j-flanagan/statement-senate-majority-leader-john-j-flanagan-regarding-2.
28

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86. The public commentary further establishes that the apparent purpose and effect of the Felder Amendment was to advance a specific religion. For example, the New York Jewish Week wrote that “[t]he measure appears to be written specifically to lower the bar on curriculum requirements for chasidic yeshivas.”33 Commentary in the New York Sun agreed that the Felder Amendment could “end[] the controversy over the private religious schools” and prevent yeshivas from being “pressured to change their curriculum.”34 No less an authority than the Yeshiva World News wrote that the Felder Amendment “recognized the unique nature of a yeshiva education,” and would prevent the government from taking action to enforce compliance with the “substantial equivalent” standard.35 Hasidicnews.com characterized the passage as coming just in time to protect yeshivas from YAFFED’s “advocacy bearing fruit in the form of new regulations that were to be issued by the state,” and said the Felder Amendment would allow New York City to “legally absolve itself from fielding any complaints relating to the inadequacy of parochial school curricula—something it has been itching to do for years so as not to alienate its large haredi constituency.”36 A USA Today affiliate published an opinion article
33 Amy Sara Clark, Questions Over Felder’s ‘Yeshiva’ Amendment, New York Jewish Week (Apr. 3, 2018), http://jewishweek.timesofisrael.com/questions-over-felders-yeshiva-amendment/, attached as Exhibit 15. 34 Seth Lipsky, New York Compromise On Yeshiva Education Could Yet Be A Beacon, New Yok Sun (April 12, 2018), https://www.nysun.com/new-york/new-york-compromise-on-yeshivaeducation-could-be/90235/. 35 Yeshiva World, New N.Y. Budget Includes Historic Yeshiva Provision(April 11, 2018), https://www.theyeshivaworld.com/news/general/1504727/new-n-y-budget-includes-historicyeshiva-provision.html, attached as Exhibit 16. 36 Jacob Gluck, Haredim in New York Celebrate Legal Victory regarding their K-12 Curriculum, Hasidicnews.com (April 5, 2018), http://hasidicnews.com/?p=948, attached as Exhibit 17.
29

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noting that the law was “a thinly veiled attempt to shield only certain yeshivas from the current
process.”37
87. As discussed above, shortly after the Felder Amendment passed, Rabbi Aaron
Teitelbaum explained that Senator Felder should “block the budget, [and] the governor would
have to get involved, and then it would be possible to have the law changed for our benefit.”
Ami at 74-75.
88. Upon information and belief, the Felder Amendment is viewed as an endorsement
by the state of the religious education choices made by ultra-Orthodox communities. For
example, upon information and belief, David Zweibel, the leader of Agaduth Israel, an Orthodox
Jewish advocacy group that has taken a position against state oversight of ultra-Orthodox
schools, stated in an interview, delivered in Yiddish, available on a telephone hotline called Kol
Mevaser, (212) 444-1100, on or after April 2, 2018, just after the Passover holiday:38
And the main thing is to understand that this is a battle for the Torah institutions across the entire state of New York, in Brooklyn, in Monsey, in Kiryas Joel, in the entire State of New York. Which—I don't know the exact number—tens of thousands of children are educated in these institutions, and yeshivas. And the situation is very serious. We just hope that what Senator Felder has done, according to the instructions of the sages, and together with all the other activists, we hope that—we speak now of “Our Time of Freedom” [the Passover holiday], which is apropos of the world today, and we should remember that the night of Passover was a time that the law was changed of New York. A new law was passed, which for the first time recognizes that the education we receive in yeshiva is a rigorous academic education, which sharpens the mind. And a child that goes through the yeshiva system is a child that has had a good education. We hope, with G-d’s help, that this will at least be part of the salvation that we need.

37 Ken Zebrowski, ‘Yeshiva Clause’ in New York Budget Plays Politics with Children’s

Education:

Assemblyman,

Lohud

(Apr.

9,

2018),

https://www.lohud.com/story/opinion/contributors/2018/04/09/yeshiva-clause-new-york-

budget/497084002/

38 “Kol Mevaser” is understood in Yiddish to mean “the voice that reports/announces.” On information and belief, the telephone hotline is widely used to disseminate information to the interested public and in particular those in the Hasidic ultra-Orthodox Jewish community.

30

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89. As such, the Felder Amendment has the effect of privileging a particular religion, specifically ultra-Orthodox groups such as the Hasidic sect, and subjecting schools of that particular religion to lower educational standards—unsurprisingly, given that the public statements and circumstances surrounding its passage demonstrate that privileging ultraOrthodox Jewish yeshivas was the purpose of the Amendment.
90. Finally, the Felder Amendment’s vague standard for high school requiring “academically rigorous instruction that develops critical thinking skills in the schools’ students, the outcomes of which, taking into account the entirety of the curriculum, result in a sound basic education,” will excessively entangle New York State and local governments with the religious decisions of these ultra-Orthodox Jewish yeshivas.
91. The Felder Amendment has and will impact YAFFED’s advocacy, potentially rendering moot some of its work over the past six years. Upon information and belief, there is a significant risk that NYCDoE will delay, halt, or curb its investigation of yeshivas identified by YAFFED as failing because of the Felder Amendment. Upon information and belief, other investigations pursued by other local boards of education may also be delayed, halted, or curbed because of the Felder Amendment. Upon information and belief, NYSED’s revised guidelines on substantial equivalence may be affected by the Felder Amendment.
92. The Felder Amendment has also significantly impaired YAFFED’s work and forced YAFFED to shift valuable resources away from its traditional advocacy and education efforts. Instead of advocating that the state and city enforce the laws requiring a substantially equivalent education, YAFFED has had to focus now on advocating in opposition to the Felder Amendment and to have the Felder Amendment declared unconstitutional. Likewise, instead of educating the general public on how yeshivas do not provide a “substantially equivalent”
31

Case 1:18-cv-04167 Document 1 Filed 07/23/18 Page 32 of 35 PageID #: 32
education as required under the law, YAFFED has had to shift some of its resources to informing the public about the Felder Amendment and the impact that it will have on the NYCDoE’s oversight.
93. YAFFED has devoted significant resources to combating the Felder Amendment. FIRST CAUSE OF ACTION (For Declaratory Relief)
94. Plaintiff incorporates by reference herein paragraphs 1-93. 95. The Felder Amendment and Defendants’ enforcement of the Felder Amendment violate the Establishment Clause of the First Amendment to the United States Constitution as applied to the States and their political subdivisions under the Fourteenth Amendment and by 42 U.S.C. § 1983. 96. The Felder Amendment impermissibly aids religion and entangles the government with religion in violation of the Establishment Clause through the relaxation of educational standards for ultra-Orthodox Jewish non-public schools. 97. As corroborated by the circumstances of and public statements surrounding its passage, the purpose of the Felder Amendment is non-secular and intended to benefit the ultraOrthodox Jewish non-public schools by exempting only these schools from the state standards required of all other non-public schools. 98. In addition, the Felder Amendment has the purpose and effect of privileging one religion over others and over secular entities. Because the Felder Amendment language applies only to ultra-Orthodox Jewish non-public schools, Defendants, through the passage and enforcement of the Felder Amendment, have favored one type of religious school over schools based in other religions and over secular non-private schools.
32

Case 1:18-cv-04167 Document 1 Filed 07/23/18 Page 33 of 35 PageID #: 33
99. Finally, the Felder Amendment and Defendants’ enforcement of the Felder Amendment excessively entangle the government with religion. Because the Felder Amendment exempts only ultra-Orthodox Jewish non-public schools from the state standards and puts in place vague standards which will require significant government interpretation, the Felder Amendment requires specific supervision and interpretation of these standards only as applied to ultra-Orthodox Jewish non-public schools, resulting in excessive government entanglement. Consequently, the Felder Amendment will result in delayed investigations and frustrated oversight of only ultra-Orthodox Jewish non-public schools.
100. An actual controversy exists between Plaintiff and Defendants regarding whether the Felder Amendment violates the Establishment Clause of the United States Constitution. Additionally, a declaratory judgment will serve a useful purpose in clarifying and settling the legal conflict at issue, and will provide relief from the uncertainty giving rise to this proceeding.
101. Plaintiff has suffered and will continue to suffer immediate and irreparable harm if Defendants are permitted to continue enforcing the Felder Amendment. It will be required to permanently shift focus of their advocacy and completely recreate their reform efforts. There is no adequate remedy at law for redress of Defendants’ Constitutional violations.
102. Plaintiff is entitled to a declaration, pursuant to 28 U.S.C. § 2201 and in accordance with Federal Rules of Civil Procedure Rule 57, that the Felder Amendment violates the Establishment Clause of the United States Constitution, and an injunction, pursuant to Federal Rules of Civil Procedure Rule 65, preventing Defendants from enforcing the Felder Amendment.
SECOND CAUSE OF ACTION (For Injunctive Relief)
103. Plaintiff incorporates by reference herein paragraphs 1-102. 33

Case 1:18-cv-04167 Document 1 Filed 07/23/18 Page 34 of 35 PageID #: 34
104. Prior to passage of the Felder Amendment, NYSED had been working and was set to release guidelines detailing methods for oversight of underperforming yeshivas. On information and belief, NYSED has delayed release of those guidelines because of the Felder Amendment. On information and belief, NYSED may either delay action indefinitely or issue guidelines that comport with Section 3204 as amended.
105. Defendants’ release of revised guidelines issued pursuant to an unconstitutional law will harm YAFFED, which has been required to expend time and money to lobby Defendants to enforce the law. This harm is immediate, ongoing, and irreparable.
106. Plaintiff is entitled to an injunction, pursuant to Federal Rules of Civil Procedure Rule 65, requiring Defendants to maintain the status quo prior to the Felder Amendment and perform its duties accordingly.
PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that this Court enter an order: a. Declaring that the Felder Amendment violates the Establishment Clause of the United States Constitution; b. Enjoining Defendants, temporarily, preliminarily, and permanently, from enforcing or promulgating guidelines in compliance with the Felder Amendment; c. Ordering that Defendants enforce and promulgate guidelines pursuant to the previous version of NY Education Law Sec. 3204 which require all applicable non-public schools to provide a “substantially equivalent” education to all of their students; d. Awarding Plaintiff the costs and disbursements of this action, including reasonable attorneys’ fees; and e. Granting such other relief as the Court deems just and proper.
34

Case 1:18-cv-04167 Document 1 Filed 07/23/18 Page 35 of 35 PageID #: 35

Dated: July 23, 2018

By:

/s/ Eric Hui-chieh Huang

Eric Hui-chieh Huang Samuel C. Kitchens Thomas A. Bridges QUINN EMANUEL URQUHART
& SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel: (212) 849-7000 Fax: (212) 849-7100 Email: erichuang@quinnemanuel.com

Pro-bono Counsel for Plaintiff Young Advocates for Fair Education (“YAFFED”)

35

 
 Case 1:18-cv-04167-ILG-JO Document 68 Filed 01/16/19
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------x
YOUNG ADVOCATES FOR FAIR EDUCATION,

Page 11N CofLfE~3R5KL'SPEOaFDgFeICIDE #: 1251
US DISTRICT COURT E.D.N.Y.
* * JAN 16 2019
BROOKLYN OFFICE

-against-

Plaintiff,

'MEMORANDUM AND ORDER 18-CV-4167

ANDREW CUOMO, in his official capacity as Governor of the State ofNew York, BETTY ROSA, in her official capacity as Chancellor of the Board of Regents of the State of New York, MARYELLEN ELlA, in her official capacity as Commissioner of the New York State Education Department,
Defendants.
---------------------------------------------------------X
GLASSER, Senior United States District Judge:
New York's Education Law provides that children in private schools must receive an
education that is "at least substantially equivalent" to the instruction given at public schools in
the city or district where they reside. N.Y. Educ. L. § 3204(2)(i). On April12, 2018, Governor
Andrew Cuomo signed into law an amendment to the Education Law setting forth factors that
must be considered when evaluating whether certain private schools provide a "substantially
equivalent" education. See L. 2018, ch. 59, pt. SSS (the "Felder Amendment" or the
"Amendment"); N.Y. Educ. L. § 3204(2)(ii)-(v). Although the Felder Amendment does not
refer to religious schools on its face, Young Advocates for Fair Education ("YAFFED"), a non-
profit group that advocates for improved secular education in the Hasidic Jewish community,
argues that the Amendment was designed to reduce the level of secular education that must be
taught in private Hasidic Jewish schools without changing the educational requirements

1

Case 1:18-cv-04167-ILG-JO Document 68 Filed 01/16/19 Page 2 of 35 PageID #: 1252
applicable to other private schools, including other religious schools. (ECF No. 1 ("Compl.")~~ 8-9, 12).
YAFFED brought this action on July 23, 2018, alleging that the Felder Amendment violates the Establishment Clause of the First Amendment to the United States Constitution and seeking declaratory and injunctive relief. YAFFED names Governor Cuomo, Betty Rosa, Chancellor of the Board of Regents of the State ofNew York, and MaryEllen Elia, Commissioner (the "Commissioner") of the New York State Education Department ("NYSED"), in each case in their official capacities, as Defendants. On August 24, 2018, YAFFED moved for a preliminary injunction "restraining and enjoining Defendants ... from enforcing or promulgating guidelines in compliance with the [Felder Amendment] [and] ordering
Defendants to maintain the statutory status quo ante as it existed prior to Aprill2, 2018." (ECF
No. 17, at 1-2). On October 2, 2018, Defendants moved to dismiss pursuant to Federal Rules of Civil 12(b)(1) and (6) on standing, ripeness and Eleventh Amendment grounds. (ECF Nos. 32, 34).
The statute at issue in this case, and the events leading up to its enactment, have aroused strong feelings on both sides and raise substantial questions of constitutional law. However, Article III of the United States Constitution limits this Court's jurisdiction to "Cases" and "Controversies," which the Supreme Court has construed to require that "the plaintiff ... have suffered an 'injury in fact'-an invasion of a legally protected interest" which is "concrete and
particularized," as well as "actual or imminent, not 'conjectural' or 'hypothetical.' "Lujan v. Defenders ofWildlife, 504 U.S. 555, 560 (1992) (citations omitted). This standing requirement
"tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic
2

Case 1:18-cv-04167-ILG-JO Document 68 Filed 01/16/19 Page 3 of 35 PageID #: 1253
appreciation of the consequences ofjudicial action." Valley Forge Christian College v. Americans Unitedfor Separation ofChurch and State, Inc., 454 U.S. 464,472 (1982). The Court has no desire to evade the complex questions presented here, mindful that the judiciary's application of the standing doctrine has occasionally been criticized as a way of punting on difficult questions or avoiding a ruling on the merits. See, e.g., Mark V. Tushnet, The Sociology ofArticle III: A Response to Professor Brillmayer, 93 Harv. L. Rev. 1698, 1715 n. 72 (1980); Mark V. Tushnet, The New Law ofStanding: A Plea for Abandonment, 62 Cornell L. Rev. 663, 663-664 (1977). However, on the present record, YAFFED has failed to demonstrate that it has suffered an injury in fact sufficient to confer standing, or that such an injury is "certainly impending." Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015) (quoting Clapper v. Amnesty Intern. USA, 568 U.S. 398,409 (2013)). Therefore, the Court has no choice but to grant Defendant's motion to dismiss pursuant to Rule 12(b)(1).
BACKGROUND
I. The Education Law Prior to Apri112, 2018
The Education Law requires children aged 6 to 16 in New York State to attend "full time instruction" and sets forth minimum standards for the quality of instruction in public schools. N.Y. Educ. L. §§ 3204, 3205(1), (3). Public schools must teach particular subjects at various grade levels, including English language, reading, writing, mathematics, geography, United States history, science, music, visual arts, and physical education. See N.Y. Educ. L. § 3204(3)(a); 8 N.Y.C.R.R. §§ 100.2-100.5, 135.4. The State also requires instruction in specialized topics including mental health, alcohol and drug abuse, patriotism, citizenship, and human rights, among others. See N.Y. Educ. L. §§ 801, 801-a, 803, 804, 806, 808, 809, 810; 8 N.Y.C.R.R. §§ 100.2(c), 135.3.
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In private schools, including parochial schools, students must receive instruction that is "at least substantially equivalent" to the instruction given at public schools in the city or district where they reside. /d. § 3204(2)(i). It is generally up to the local school board, through the district superintendent, to determine whether its students are receiving a "substantially equivalent" education. See Blackwelder v. Safnauer, 689 F.Supp. 106, 122 (N.D.N.Y. 1988); Matter ofAdam D., 132 Misc.2d 797, 801, 803 (N.Y. Fam. Ct., Schoharie County 1986); Appeal ofM L. B., 34 Ed. Dept. Rep., Decision No. 13225, 1994 WL 16854677, at *2 (N.Y. Comm'n Educ. Jul. 22, 1994); Appeal ofN. and A.A., 33 Ed. Dept. Rep., Decision No. 13118, 1994 WL 16854598, at *2 (N.Y. Comm'n Educ. Feb. 28, 1994). 1 In New York City, this function is discharged by the Chancellor of the New York City Department of Education ("NYCDOE"). See New York State Department ofEducation, "Substantial Equivalency Review and Determination Process" 1-2 (Nov. 20, 20 18), available at http://www.nysed.gov/common/nysed/files/programs/nonpublic-schools/substantial-eguivalencyguidance.pdf.2 Parents and/or private school officials may appeal the local school authority's adverse determination directly to the Commissioner of Education. See Blackwelder, 689 F.Supp. at 122; Adam D., 132 Misc.3d at 803.3
1 Alternatively, private schools may voluntarily register with NYSED, in which case they are deemed to satisfy the substantial equivalence requirement. See Appeal ofFusion AcademyBrooklyn, 56 Ed. Dept. Rep., Decision No. 17070 (N.Y. Comm'n Educ. Apr. 5, 2017). 2 This opinion employs the term "local school authority" to refer to the local school board or the NYCDOE, as applicable. 3 The Commissioner of Education serves as the "chief administrative officer" ofNYSED. N.Y. Const., Art. V, § 4; N.Y. Educ. L. § 101. NYSED is "charged with the general management and supervision of all public schools and all ofthe educational work~' of the State ofNew York. N.Y. Educ. L. § 101. The Commissioner is required to "enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the
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The Education Law does not define what it means for private school instruction to be "substantially equivalent." However, for years, NYSED maintained "guidelines" which essentially incorporated most of the statutory and regulatory requirements applicable to public schools, see N.Y. Educ. L., Title I, Art. 17; id. § 3204(3)(a); 8 N.Y.C.R.R. §§ 100.2-100.5, and applied them to private schools. (ECF No. 39 ("Coughlin Decl.") ~ 3). See New York State Department of Education, "Guidelines for Determining Equivalency of Instruction in Nonpublic Schools" (the "Prior Guidelines"), Question 24, available at http://www.p12.nysed.gov/nonpub/guideIineseguivofinstruction.html. Hence, under the Prior Guidelines, all private schools in the State were legally required to teach English, mathematics, science, social studies, art, music, physical education, and health, among other courses.
II. Hasidic Education in New York
Hasidic4 Jewish parents generally choose to educate their children in a network of religious schools. (ECF No. 27 ("Moster Decl.") ~ 31). During the 2013-2014 school year, according to one estimate, there were approximately 52,063 students enrolled in Hasidic schools throughout New York City, representing nearly half of all enrollment in Jewish day schools. See Marvin Schick, A Census ofJewish Day Schools in the United States 2013-2014, at 33, Table 13 (October 2014).5 These schools are segregated by gender, with boys attending what are called
board of regents." ld § 305(1). In addition, she exercises "general supervision over all schools and institutions which are subject to" the provisions of the Education Law. /d. § 305(2). 4 Hasid is the Hebrew word for "pious." Hasidic Jews, or Hasidim, are the largest sub-group of Haredi Jews. Haredim are sometimes referred to as "ultra-Orthodox," although this term may be considered objectionable. 5 The remaining Jewish day schools are affiliated with other Orthodox movements (including both haredi and modern Orthodox schools) or are non-Orthodox schools (i.e., Reform, Conservative or Community). See Schick, supra, at 32-33.
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yeshivas (or, at younger ages, cheder). (Moster Decl. ~ 31 ). As stated by amici who are supportive of the Felder Amendment:
Orthodox Jewish parents choose yeshiva education for their children to fulfill the Biblical injunction that "You shall place these words of Mine upon your heart and upon your soul ... and you shall teach them to your children to speak in them." Deuteronomy 11:18-19. The Bible says of Abraham, "I have known him because he commands his sons and his household after him, that they should keep the way of the Lord." Genesis 18:19. (ECF No. 41, at 1 (Brief of Amici Curiae Parents for Educational and Religious Liberty in Schools (PEARLS), Agudath Israel of America, Torah Umesorah: National Society for Hebrew Day Schools, and United Jewish Organizations of Williamsburg (UJO) (collectively, the "PEARLS Amici")). For parents who choose a traditional yeshiva education for their children, it is an important pillar of continuity within the Hasidic community, assuring that their beliefs will be reliably passed on from one generation to the next, and instilling an invaluable sense of Jewish identity and belonging. (ECF No. 44 ("Twerski Decl.") ~~ 5-12). Proponents argue that these schools are "the primary vehicle responsible for inculcating Jewish values, Jewish learning and Jewish living, are responsible for the rebirth of the Jewish community out of the ashes of destruction in Eastern Europe, and are what today ensures and allows for the continuity and growth of the Jewish community in New York and around the country." (Twerski Decl. ~ 12). This lawsuit comes in the midst of an ongoing dispute over the quality and efficacy of the secular education being provided at Hasidic yeshivas. The limited data available6 suggests that,
6 It does not appear that a large-scale study has ever been conducted into the education provided at Hasidic schools in New York. One comprehensive source of information on this subject was an investigation carried out by NYCDOE in response to a complaint by YAFFED and co-signed by fifty-two yeshiva graduates, parents of current students, and current teachers, regarding 39 yeshivas in Brooklyn and Queens. (Bridges Ex. 18 ("NYCDOE Investigation")). NYCDOE interviewed the complainants in 2015
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between ages 7 and 12, boys receive no more than approximately 90 minutes of secular study per day, four days per week. (Non-Equivalent 31; NYCDOE Investigation 4). These classes are usually limited to English and mathematics and may be taught in either English or Yiddish. (Non-Equivalent, 31-33; NYCDOE Investigation 4-5). The remainder of the school day consists of a religious curriculum conducted in Yiddish. (Non-Equivalent 4, 52). After age 13, secular studies cease altogether. (Non-Equivalent 31, 34-36; NYCDOE Investigation 4). Girls' schools, by contrast, provide somewhat more secular education in earlier grades, and this secular
education extends beyond age 13. (Non-Equivalent 31, 33, 36).
III. The Felder Amendment
The Felder Amendment was introduced by State Senator Simcha Felder and passed both chambers of the State Legislature on March 30, 2018. It was signed into law by Governor Cuomo on April 12, 2018, whereupon it took immediate effect. The Amendment applies only to schools that are organized as a not-for-profit corporation, have a bilingual program, and operate during certain specified hours. See N.Y. Educ. L. § 3204(2)(ii), (iii).7 YAFFED contends that
and 2016, and its findings were summarized in an August 2018 letter by NYCDOE Chancellor Richard A. Carranza to Commissioner Elia. Another source of information is a September 2017 report published by YAFFED, entitled NonEquivalent: The State ofEducation in New York City's Hasidic Yeshivas. (Moster Decl. Ex. 1 ("Non-Equivalent")). Although its findings are consistent with the NYCDOE investigation, the YAFFED report is not without methodological limitations. The report is primarily based on an online survey, conducted by YAFFED, of former yeshiva graduates and parents of current yeshiva students, of whom 49 attended Hasidic elementary school and 44 attended a high-school level Hasidic yeshiva. (Non-Equivalent 75). Professor Awi Federgruen, a Columbia Business School professor whose declaration was submitted by the PEARLS Amici, has criticized the methodology of the survey and questioned its reliability for its small sample size, the fact that it was distributed through social media, and the fact that the survey questions were not clearly disclosed in the report. (ECF No. 56 ~~ 6-17). 7 Specifically, the Felder Amendment applies to:
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virtually all schools in New York that fit these narrowly-tailored criteria are Haredi Jewish yeshivas. (Compl. ~~ 76, 80; Moster Decl. ~ 39). Although there is little official legislative history accompanying the Amendment, statements by Senator Felder appear to confirm that the Amendment was drafted with these yeshivas in mind. (Bridges Ex. 11, at 7; Bridges Ex. 30, at 4). Because it is not certain to which schools the Amendment will apply in practice, the Court will simply refer to private schools covered by the Felder Amendment as "covered schools."
Substantively, the Amendment has three basic parts. First, it provides that the Commissioner of Education, rather than local school authorities, shall determine whether a covered school's education is "substantially equivalent" to that of a public school within the city
or district where its students reside. See N.Y. Educ. L. § 3204(2)(v). Responsibility for making
such determinations with respect to non-covered schools remains in the hands of local school authorities.
.. . non-public elementary and middle schools that are: (1) non-profit corporations, (2) have a bilingual program, and (3) have an educational program that extends from no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five thirty p.m. for grades four through eight, on the majority of weekdays .... N.Y. Educ. L. § 3204(2)(ii), and to: ... non-public high schools that: (1) are established for pupils in high school who have graduated from an elementary school that provides instruction as described in this section [sic], (2) are a non-profit corporation, (3) have a bilingual program, and (4) have an educational program that extends from no later than nine a.m. until no earlier than six p.m. on the majority of weekdays .... ld. § 3204(2)(iii).
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Second, the Amendment provides that, in assessing whether covered schools provide a "substantially equivalent" education, NYSED "shall consider ... if the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students," "taking into account the entirety of the curriculum." !d. § 3204(2)(ii), (iii). The statute clarifies, however, that NYSED's review is "not limited to" these considerations. Id § 3204(2)(ii), (iii).
Third, with respect to elementary and middle schools covered by the Amendment, NYSED's review must "includ[e]" an assessment of whether the school is adequately teaching four core classes: English; mathematics; history (which need not include United States history); and science (which the statute defines broadly as "learning how to gather, analyze and interpret observable data, using deductive and inductive reasoning to support a hypothesis, and [learning] how to differentiate between correlational and causal relationships"). !d. § 3204(2)(ii). These criteria are more relaxed than those made applicable under NYSED guidelines in effect at the time of the Amendment's enactment. Cf Prior Guidelines, supra, Question 24. For covered high schools, the Amendment requires no instruction in any particular subjects, but only that the "outcomes" of the instruction provided at covered high schools, "taking into account the entirety of the curriculum, result in a sound basic education." N.Y. Educ. L. § 3204(2)(iii).8
8 The relevant text of the Felder Amendment is as follows. For covered elementary and middle schools:
For purposes of considering substantial equivalence ... the department shall consider the following, but not limited to: if the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students, taking into account the entirety of the curriculum, over the course of elementary and middle school, including instruction in English that will prepare pupils to read fiction and nonfiction text for information and to use that information to construct written essays that state a point of view or support an argument; instruction in mathematics that will prepare pupils to solve real world problems using both number sense and fluency with mathematical functions and operations; instruction in history by being
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Viewed holistically, the effect of the Felder Amendment was to expand NYSED's
discretion to exempt covered schools from the educational requirements otherwise applicable to
private schools under NYSED's then-existing guidelines. As indicated by the Amendment's use
of open-ended language such as "including" and "not limited to," the specific educational criteria
set forth in the Amendment establish a floor rather than a ceiling. NYSED could deem schools to
be compliant with the Education Law's substantial equivalence mandate if they meet these
minimal requirements. Alternatively, NYSED could impose learning standards that go above and
beyond these statutory requirements, and deem any schools that fall beneath these heightened
standards noncompliant with the substantial equivalence mandate-even if the schools provide
the basic level of instruction required in the Felder Amendment itself. Either is a permissible
interpretation of the statute.9 In short, the Amendment permits NYSED to treat covered schools
more leniently than non-covered schools, but it does not require that it do so.
able to interpret and analyze primary text to identify and explore important events in history, to construct written arguments using the supporting information they get from primary source material, demonstrate an understating [sic] of the role of geography and economics in the actions of world civilizations, and an understanding of civics and the responsibilities ofcitizens in world communities; and instruction in science by learning how to gather, analyze and interpret observable data to make informed decisions and solve problems mathematically, using deductive and inductive reasoning to support a hypothesis, and how [sic] to differentiate between correlational and causal relationships. N.Y. Educ. L. § 3204(2)(ii).
For covered high schools:
For purposes of considering substantial equivalence ... the department shall consider the following but not limited to: if the curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students, the outcomes of which, taking into account the entirety of the curriculum, result in a sound basic education. /d. § 3204(2)(iii).
9 To illustrate, even though the Prior Guidelines required private schools to teach United States history, the Felder Amendment does not include United States history as part of the required
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IV. The Revised Guidelines
On November 20, 2018, nearly four months after YAFFED filed this lawsuit, NYSED released revised guidelines that describe the factors that educational officials will consider when reviewing private schools for substantial equivalence (the "Revised Guidelines"). 10 The Revised Guidelines were drafted over the course of a nearly two-year consultative process that commenced long before the Felder Amendment was conceived. (Coughlin Decl. ~ 4). These guidelines apply to all private schools, not just covered schools, although they take the statutory mandates contained in the Felder Amendment into consideration. Like the Prior Guidelines, which they superseded, the Revised Guidelines do not have the binding force of law. Nevertheless, because the Commissioner has ultimate review power over all substantial equivalency determinations in the State, the Revised Guidelines are a reliable indicator of how the substantial equivalence requirement, including the Felder Amendment, will be enforced in practice.
history curriculum at covered schools. Compare N.Y. Educ. L. § 3204(2)(ii) with Prior Guidelines, supra, Question 24. Therefore, the Felder Amendment permits the Commissioner to exempt covered schools from the United States history requirement. However, the Commissioner, in her discretion, may continue to require that both covered and non-covered private schools teach United States history. 10 The Revised Guidelines do not appear in a single document, but instead comprise multiple documents available on NYSED's website at http://www.nysed.gov/nonpublicschools/substantial-eguivalency. NYSED has made clarifications to the guidelines between November 20,2018 and the date of this opinion. The guidelines that appear on NYSED's website reflect the most current version. The Court may sua sponte take judicial notice of the
contents of these guidelines. See Cruz v. Credit Control Services, Inc., 2017 WL 5195225, at *3
(E.D.N.Y. Nov. 8, 2017) ("It is entirely proper for the Court to take judicial notice of publicly available documents on government websites"); Fernandez v. Zoni Language Centers, Inc., 2016 WL 2903274, at *3 (S.D.N.Y. May 18, 2016) ("Courts regularly take notice of publicly available documents ... retrieved from official government websites").
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With minor exceptions, the Revised Guidelines incorporate the curricular standards
contained in the Education Law and its implementing regulations, seeN. Y. Educ. L., Title I, Art. 17; id § 3204(3)(a); 8 N.Y.C.R.R. §§ 100.2-100.5, 135.3-135.4, and apply them to all private
schools. In this sense, the Revised Guidelines are largely a continuation of the Prior Guidelines, albeit with some changes and clarifications. The Revised Guidelines come with "Toolkits," which are simply checklists of factors that will be reviewed by education officials when making their determination, and each factor corresponds to a specific provision of the Education Law or the regulations promulgated thereunder. The Toolkits are accompanied by an appendix, which sets forth a detailed list of course requirements for private schools at various grade levels and, for some grades, the number of hours per week that must be devoted to each subject. Core subjects such as mathematics, science, English, social studies, art and health must be taught throughout elementary, middle and high schools. In grades 7 and 8, the Revised Guidelines require approximately 3 Y2 hours of secular studies per day. For high schools, the Revised Guidelines incorporate by reference Section 100.5 of the Commissioner's regulations, which also generally
require more than three hours per day of secular studies. See 8 N.Y.C.R.R. §§ 100.1(a), 100.5;
New York State Department of Education, "Guidance on New York Diploma Requirements," http://www.nysed.gov/commonlnysed/files/programs/curriculuminstructionlcurrentdiplomareguirements2.pdf. These course requirements "may be met by incorporating, or integrating, the State learning standards" into other courses. Although the Revised Guidelines do not say so explicitly, this would permit private schools to integrate secular subjects into religious classes, provided that the school meets all unit of study requirements and provides students with instruction that enables them to achieve State learning standards.
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Critically, these requirements, including the specific curriculum and hours requirements set forth in the Toolkit appendices, are identical for all private schools in the state, regardless of whether tltey are covered by tile Felder Amendment. Indeed, there are only two respects in which the Revised Guidelines differentiate between covered and non-covered schools. First, per paragraph (v) ofthe Felder Amendment, N.Y. Educ. L § 3204(2)(v), substantial equivalence is determined by NYSED for covered schools, albeit with an initial review and "recommendation" by local school authorities, which NYSED may in its discretion accept or reject. Second, for covered schools, NYSED is required to consider the educational standards imposed by the Felder Amendment-i.e., whether "curriculum provides academically rigorous instruction that develops critical thinking skills in the school's students," "taking into account the entirety of the curriculum," id. § 3204(2)(ii), (iii), and whether the Felder Amendment's learning standards in English, mathematics, history and science are being provided in covered elementary and middle schools, id. § 3204(2)(ii)-but these factors are supplemental to, rather than in lieu of, the more detailed course and hour requirements applicable to (both covered and non-covered) private schools.
The great irony, therefore, is that even though YAFFED alleges that the Felder Amendment was designed to reduce the amount of secular education provided at Hasidic yeshivas, it may have precisely the opposite effect. As mentioned previously, the Felder Amendment is drafted permissively and affords NYSED great discretion in imposing curricular standards supplemental to what is set forth in the statute. By promulgating the Revised Guidelines, the Commissioner has exercised that discretion to require covered schools to comply with all of the same curriculum and hour requirements applicable to other private schools, plus the skill sets enumerated in the Felder Amendment. However, despite the positions it has taken
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elsewhere, 11 YAFFED has not sought leave to amend its complaint, and it continues to seek an injunction against enforcement of the Felder Amendment and NYSED's guidelines, arguing that the Felder Amendment reflects an unconstitutional preference for Hasidic Jewish schools vis-a-
vis other schools.
DISCUSSION
I.
Legal formalities aside, it is apparent that the real question in this case is how to balance two competing values, both of which must be cherished in a free and democratic society, but either one of which, if allowed to expand to its logical conclusion, would swallow the other.
On one side is the right of every child to a sound basic education, the actualization of which "is perhaps the most important function of state and local governments." Brown v. Board ofEd. ofTopeka, Shawnee County, Kan., 347 U.S. 483,493 (1954) ("Today [education] is a principal instrument in awakening the child to cultural values, in preparing him [or her] for later professional training, and in helping him [or her] to adjust normally to his [or her] environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education"). It is often said that the importance of an education is to prepare one for civic engagement. Far more compelling than these collective
11 Since the publication of the Revised Guidelines, YAFFED and its Executive Director have issued statements defending NYSED and the Revised Guidelines from criticism. See Naftuli Moster, "The Truth About the Struggle For Secular Education in Yeshivas," Medium, Jan. 6, 2019, https://medium.com/@Yaffedorg/the-truth-about-the-struggle-for-secular-education-inyeshivas-67c7f3f4a32c; Naftuli Moster, "Statement Regarding New York State 'Substantial Equivalency' Guidelines," Medium, Dec. 13, 2018, https://medium.com/@Yaffedorg/statementregarding-new-york-state-substantial-equivalency-guidelines-e331 006f6aef; YAFFED (@yaffedorg), Twitter (Dec. 28, 2018, 8:10a.m.) ("At the moment it looks like Albany [is] doing the right thing. Commissioner Elia has been called the harshest names by some Yeshivas leaders .... Yet she appears to be holding her ground."), https://twitter.com/yaffedorg/status/1078684603 811 012609.
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interests, however, is the importance of education for the liberty of the individual. Simply put,
one who enters adulthood without a sound basic education is not fully free to pursue their loftiest
ambitions or to chart their own future. Circumstance has charted it for them. See Plyler v. Doe,
457 U.S. 202, 222 (1982) ("The inability to read and write will handicap the individual deprived
of a basic education each and every day ofhis [or her] life"); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 112 (1973) (Marshall, J., dissenting) ("Education directly affects
the ability of a child to exercise his [or her] First Amendment rights, both as a source and as a receiver of information and ideas, whatever interests he [or she] may pursue in life"). It was this nexus between education and individual liberty that moved Justice White to observe that "[a] State has a legitimate interest not only in seeking to develop the latent talents of its children but also in seeking to prepare them for the life style that they may later choose, or at least to provide
them with an option other than the life they have led in the past." Wisconsin v. Yoder, 406 U.S. 205, 221 (1972) (White, J., concurring). Accordingly, States have a compelling interest in
prescribing minimum requirements for the curricula provided at private schools within their
jurisdiction. See Lemon v. Kurtzman, 403 U.S. 602,613 (1971); Board ofEd. ofCentral School Dist. No. 1 v. Allen, 392 U.S. 236, 245-246 and n. 7 (1968); Pierce v. Society ofthe Sisters ofthe Holy Names ofJesus and Mary, 268 U.S. 510, 534 (1925); Meyer v. Nebraska, 262 U.S. 390, 402 (1923); New Life Baptist Church Academy v. Town ofEast Longmeadow, 885 F.2d 940, 944-945 (lst Cir. 1989) (Breyer, J.), cert. denied, 494 U.S. 1066 (1990).
These interests must be balanced, however, with the liberty of a parent under the Free Exercise and Due Process Clauses to direct their child's education in a manner that safeguards
their cultural, religious and linguistic identity. See Yoder, supra; Pierce, 268 U.S. at 534-535; Meyer, 262 U.S. at 399-402. "The child is not the mere creature of the state; those who nurture
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him [or her] and direct his [or her] destiny have the right, coupled with the high duty, to
recognize and prepare him [or her] for additional obligations." Pierce, 268 U.S. at 535. So
important is the right of a parent to oversee and participate in their child's educational process that the Supreme Court has elevated it to special status, withdrawing it from the general rule, applicable in nearly every other Free Exercise case, "that an individual's religious beliefs [do not] excuse him [or her] from compliance with an otherwise valid law prohibiting conduct that
the State is free to regulate." Employment Div., Dept. ofHuman Resources ofOregon v. Smith, 494 U.S. 872, 878-879, 881 (1990). It is not difficult to harmonize this right with others relating to parental and procreational privacy, see generally Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015); U.S. v. Windsor, 570 U.S. 744,772 (2013); Roe v. Wade, 410 U.S. 113, 154 (1973); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v. Connecticut, 381 U.S. at 479, 485486 (1965); Skinner v. Oklahoma ex rei. Williamson, 316 U.S. 535, 541 (1942), "a right of
privacy older than the Bill of Rights," "older than our political parties," and certainly "older than
our school system." Griswold, 381 U.S. at 486.
The moment at which one of these weighty interests must yield to the other cannot be identified with mathematical precision. The classical approach of the law has been to develop a dizzying series of 'tests,' 'prongs' and 'factors,' stitched together over the course of decades, resting on "distinctions that would glaze the minds of medieval scholastics." Leonard W. Levy,
The Establishment Clause: Religion and the First Amendment 155 (2d ed. 1994). But an excess
of legal formalism when confronting such ancient questions risks wrenching the law from the intuition and common sense of man. In the final analysis, it may fall on the political branches of government, rather than an unelected judiciary, to discover the appropriate compromise.
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Echoed in all of this are First Amendment questions that are not altogether settled. On the one hand, it is sometimes said that the Establishment Clause "mandates government neutrality between religion and religion, and between religion and nonreligion." Epperson v. State ofArk., 393 U.S. 97, 104 (1968); see also Everson v. Board ofEd. ofEwing Tp., 330 U.S. 1, 18 (1947) ("Neither a state nor the Federal Government ... can pass laws which aid one religion, aid all religions, or prefer one religion over another"). On the other hand, "[a] law that is religio [usly] neutral on its face or in its purpose may lack neutrality in its effect by forbidding something that religion requires or requiring something that religion forbids," Church ofthe Lukumi Babalu Aye, Inc. v. City ofHialeah, 508 U.S. 520,561 (1993) (Souter, J., concurring) (emphasis added), which may render some accommodation necessary under the Free Exercise Clause, see Yoder, supra; Children's Healthcare is a Legal Duty, Inc. v. Vladeck, 938 F.Supp. 1466, 1476 (D. Minn. 1996); but see Smith, 494 U.S. at 878-882. Between those accommodations forbidden by the Establishment Clause and those mandated by the Free Exercise Clause, "there is room for J?lay in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." Walz v. Tax Commission ofCity ofNew York, 397 U.S. 664, 669 (1970); see also Cutter v. Wilkinson, 544 U.S. 709 (2005); Corporation ofthe Presiding Bishop ofthe Church ofJesus Christ ofLatter-Day Saints, 483 U.S. 327, 334-335 (1987).
But this 'play in the joints' must be reconciled with "[t]he clearest command of the Establishment Clause ... that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U.S. 228, 244 (1982). Because accommodations that favor only one religion do not advance the State's interest in religious liberty generally, see Board ofEduc. ofKiryasJoel Village School Dist. v. Grumet, 512 U.S. 687,714-716 (1994) (O'Connor, J.,
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concurring), the government may not accommodate the needs of some religions without extending similar accommodations to other religions, see Cutter, 544 U.S. at 720; Amos, 483 U.S. at 338-339, unless doing so is "justified by a compelling governmental interest" and the accommodation is "closely fitted to further that interest," Larson, 456 U.S. at 247. While courts have generally found such accommodations unconstitutional where they favor specific religious sects, see Kiryas Joel, 512 U.S. at 702-705; Colorado Christian University v. Weaver, 534 F.3d 1245, 1266-1269 (lOth Cir. 2008); Wilson v. NL.R.B., 920 F.2d 1282, 1287-1288 (6th Cir. 1990), cert. denied, 505 U.S. 1218 (1992); Vladeck, 938 F.Supp. at 1479, the contours of Larson's strict scrutiny test remain unclear, see KiryasJoel, 512 U.S. at 722-727 (Kennedy, J., concurring); Jeremy Patrick-Justice, Strict Scrutiny for Denominational Preferences: Larson in Retrospect, 8 N.Y. City L. Rev. 53 (2005).
The Court's intention in alluding to these questions is not to resolve them, but to note only that they are profoundly difficult. It is precisely in cases like this that the Court should be wary of forging ahead unless it is clear that the controversy is a live one, rather than an abstract disagreement about what the Constitution does or does not permit. "From the earliest days of the Republic it has been recognized that [courts are] without power to give advisory opinions." Larson, 456 U.S. at 264 (Rehnquist, J, dissenting) (citations and quotation marks omitted). "If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable." Regents ofUniversity ofCalifornia v. Bakke, 438 U.S. 265, 411 (1978) (quoting Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944)); see also Spector Motor Service v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting) ("Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine
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which may be in the womb of time, but whose birth is distant"). "The more important the issue, the more force there is to this doctrine." Bakke, 438 U.S. at 411-412. "Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court." Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997).
These prudential considerations are a powerful argument in favor of enforcing the Article III standing requirement rigorously. See Poe v. Ullman, 367 U.S. 497, 503-504 (1961) ("The various doctrines of'standing,' 'ripeness,' and 'mootness' ... are but several manifestationseach having its own 'varied application'-of the primary conception that federal judicial power is to be exercised to strike down legislation, whether state or federal, only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action") (footnotes omitted). The requirement that constitutional challenges be brought by the right plaintiff, at the right time, ensures that they come to the Court with a complete factual record, so that the Court does not decide the matter based on fears that do not come to pass. See Charles Alan Wright, eta!., 13 Fed. Prac. & Proc. Juris. § 3531.3 (3d ed.) (standing requirements "mean postponement ofjudicial review until passions have cooled and there has been some opportunity for evaluation of a challenged program in practice") (citing Lee A. Albert, Standing
to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale L. J.
425, 488 (1974)). Therefore, the Court will tum to whether YAFFED has adequately demonstrated Article
III standing.
II.
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Because a plaintiffs standing goes to the subject matter jurisdiction of the Court, the appropriate vehicle to dismiss a cause of action for lack of standing is Federal Rule of Civil Procedure 12(b)(1). See Cortlandt Street Recovery Corp. v. Hellas Telecommunications, S.a.r.l., 790 F.3d 411, 416-417 (2d Cir. 2015). In adjudicating a Rule 12(b)(1) motion, the Court is not limited to the pleadings, but may instead consider all evidentiary material bearing on whether it has subject matter jurisdiction. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986) ("[W]hen, as here, subject matter jurisdiction is challenged under Rule 12(b)( 1), evidentiary matter may be presented by affidavit or otherwise"). Consideration of such extrinsic materials does not convert the Rule 12(b)(l) motion into a motion for summary judgment, as would be the case for a motion under Rule 12(b)(6) or 12(c). See id.; cf Fed. R. Civ. P. 12(d).
III. The requirements for standing are well-settled. An organization may sue "in its own right" to "vindicate whatever rights and immunities the [organization] itself may enjoy." New York Civil Liberties Union v. New York City Transit Authority, 684 F.3d 286, 294 (2d Cir. 2012) (citing Warth v. Seldin, 422 U.S. 490,511 (1975)). 12 The requirements for organizational standing are the same as those for an individual plaintiff: the "plaintiff must demonstrate [(1)] an 'actual and imminent, not conjectural or hypothetical' threat of a 'concrete and particularized' injury in fact [(2)] that is 'fairly traceable to the challenged action of the defendant' and that [(3)] 'a favorable judicial decision will likely prevent or redress.' " Id (quoting Summers v. Earth
12 Although organizations may also sue on behalf of their members based on a theory of 'associational standing', see New York Civil Liberties Union, 684 F.3d at 294, the Second Circuit has interpreted 42 U.S.C. § 1983 to preclude associational standing in § 1983 cases. See League of Women Voters ofNassau County v. Nassau Board ofSupervisors, 737 F.2d 155, 160 (2d Cir. 1984); Aguayo v. Richardson, 473 F.2d 1090, 1099 (2d Cir. 1974); but see Centro de Ia Comunidad Hispana de Locust Valley v. Town ofOyster Bay, 868 F.3d 104, 122-124 (2d Cir. 2017) (Jacobs, J., dissenting) (questioning that analysis).
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Island Inst., 555 U.S. 488,493 (2009)); see also Lujan, 504 U.S. at 560-561. "To establish
standing for an injunction, a plaintiff must not merely allege past injury, but also a risk of future
harm." Access 4 All, Inc. v. Trump Intern. Hotel and Tower Condominium, 458 F.Supp.2d 160, 167 (S.D.N.Y. 2006) (citing City ofLos Angeles v. Lyons, 461 U.S. 95, 101-102, 105 (1983)).
Here, it is the first of these factors-whether YAFFED has established an injury in fact-that occupies our standing analysis.
Naftuli Moster, YAFFED's founder and Executive Director, describes the purpose of YAFFED as advocating for the improvement of"secular education in the Orthodox Jewish community, in particular in the Hasidic community," which YAFFED believes "must include a real and substantial secular component." (Moster Decl. ~~5-6). YAFFED's primary goal before the enactment of the Felder Amendment was to bring Hasidic schools into compliance with the Education Law's substantial equivalence mandate. These efforts have included lobbying State and local officials for greater oversight, direct outreach aimed at the Hasidic community, and educating the larger public about the issue. (Moster Decl. ~~ 7-9). YAFFED also engages in other efforts, including compiling and publishing data on Hasidic education, providing resources and referrals to members of the Hasidic community seeking a secular education for themselves or their children, and publishing a Yiddish newsletter about the importance of secular education that reaches almost 20,000 Hasidic homes. (Moster Decl. ~~ 10-11 ).
YAFFED primarily argues that it has standing because it has spent significant effort opposing the Amendment, both in this Court and through other avenues, and thereby "shift[ed] valuable resources away from its traditional advocacy and education efforts." (Compl. ~ 92; Moster Decl. ~~52-58). However, if the Court were to accept this argument, it would be difficult
to conceive of a case in which an organization or individual would not have standing to
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challenge a statute that they find politically or socially disagreeable. "Individual persons cannot obtain judicial review of otherwise non-justiciable claims simply by incorporating, drafting a mission statement, and then suing on behalf of the newly formed and extremely interested
organization." National Treasury Employees Union v. U.S., 101 F.3d 1423, 1429 (D.C. Cir.
1996). If any plaintiff with a strong objection to a statute could manufacture standing by spending time and money opposing that very statute-and then arguing that the expenditure of that time and money was itself an injury-there would be no real constraint upon standing at all, except perhaps the size of the plaintiffs bank account. This would conflict with the Supreme Court's admonition that the federal judiciary not be converted into "publicly funded forums for
the ventilation of public grievances." Valley Forge, 454 U.S. at 473 ("[T]he 'cases and
controversies' language of Art. III forecloses the conversion of courts of the United States into
judicial versions of college debating forums"); see also Federal Election Comm 'n v. Akins, 524
U.S. 11, 24 (1998) ("[A]bstract" harm, such as "injury to the interest in seeing that the law is
obeyed," lacks "the concrete specificity" necessary for standing); Lujan, 504 U.S. at 573-574
("We have consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy"). Here, "[i]t is evident that [Plaintiff] [is] firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his
[or her] advocacy." Valley Forge, 454 U.S. at 486. YAFFED argues that its diversion-of-resources theory finds support in Havens Realty
Corp. v. Coleman, 455 U.S. 363, 372 (1982). In Havens, the Supreme Court held that Housing
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Opportunities Made Equal ("HOME"), a civil rights organization "whose purpose was 'to make equal opportunity in housing a reality in the Richmond Metropolitan Area,' " had standing to sue under the Fair Housing Act of 1968 on the theory that the defendants forced HOME to "devote significant resources to identify and counteract the [defendants'] racially discriminatory steering practices." 455 U.S. at 368, 378. HOME alleged that these expenditures detracted from its ability to carry out its day-to-day work, including "counseling and referral services for low- and moderate-income homeseekers ... ."!d. at 379. The Court held that "[s]uch concrete and demonstrable injury to the organization's activities-with the consequent drain on the organization's resources," constituted an injury in fact rather than "simply a setback to the organization's abstract social interests." !d.
However, the critical difference between Havens and this case is that, in Havens, HOME sought only damages for past expenses. See id. at 378. Here, by contrast, YAFFED seeks prospective relief against enforcement of a government policy. Therefore, this case raises a concern that was absent in Havens, namely, the prospect that a citizen with a generalized
grievance might manufacture standing in order to enjoin conduct that they object to as a public
policy matter. See Fair Elections Ohio v. Husted, 770 F.3d 456, 460 n. I (6th Cir. 2014) (holding
that voter outreach organization lacked standing to challenge absentee ballot procedures and
distinguishing Havens on grounds that, inter alia, the Havens plaintiff sought only damages).
YAFFED also cites to a bevy of Second Circuit precedents which, it claims, support its
diversion-of-resources theory even in the context of prospective relief. See Centro de Ia Comunidad, supra; Mental Disability Law Clinic, Touro Law Center v. Hogan, 519 Fed.Appx. 714 (2d Cir. 2013) (summary order); Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011); Ragin v. Harry Mack/owe Real Estate Co., 6 F.3d 898 (2d Cir. 1993). But none of these cases support
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YAFFED's theory of standing because the organizational plaintiffs in these cases did not engage in mere advocacy, but instead provided social services directly to the group harmed by the
challenged government policy. In Centro de Ia Comunidad, the Court held that a group dedicated
to organizing day laborers had standing to challenge an anti-solicitation ordinance that physically made it more difficult for the group's members to meet with day laborers, exposed its members to a risk of mistaken arrest, and forced the group to expend resources responding to the
ordinance. See 868 F.3d at 110-111. In Mental Health Disability Law Clinic, the Court held that
a legal clinic had standing to challenge a policy of the New York State Office of Mental Health ("OMH") that would allegedly result in "[p]ervasive and systemic violations" against the
mentally disabled, Brown v. Stone, 66 F.Supp.2d 412,425 (E.D.N.Y. 1999), which required the
clinic to divert resources away from its normal activities by challenging the OMH policy itself.
See Mental Health Disability Law Clinic, 519 Fed.Appx. at 717. In Nnebe, the Court held that a
taxi workers' association had standing to challenge the Taxi and Limousine Commission's suspension procedures, which would have required the association to spend resources counseling
adversely affected drivers. See 644 F.3d at 157-158. In Ragin, the Court addressed facts largely similar to Havens, with the important difference that the organizational plaintiff sought
injunctive relief. The Court held that the organization's efforts identifying and counteracting the defendant's discriminatory conduct diverted its resources away from its usual activities and
therefore qualified as an injury in fact. See 6 F.3d at 905.
At most, these cases stand for the proposition that an organization that provides social services, such as counseling, referrals and legal advocacy, suffers a cognizable injury in fact where the defendant's conduct, if allowed to persist, would either raise the cost of providing
those services, see Centro de Ia Comunidad, 868 F.3d at 110-111; Nnebe, 644 F.3d at 157-158,
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or require the plaintiff to divert resources away from its normal operations to mitigate the adverse effects of the defendant's conduct, thereby reducing the total quantity of services that it
can provide, see Centro de Ia Comunidad, 868 F.3d at 110-111; Mental Health Disability Law Clinic, 519 Fed. Appx. at 717; Ragin, 6 F.3d at 905; see also See Common Cause/New York v. Brehm,-- F.Supp.3d --, 2018 WL 4757955, at *3-*5 (S.D.N.Y. Sept. 30, 2018) (organization
devoted to registering and mobilizing voters could challenge New York's procedures for placing voters on inactive status, where those procedures required the organization to spend time
assisting affected voters); New York State Citizens' Coalition for Children v. Velez, 2016 WL
11263164, at *5 (E.D.N.Y. Nov. 7, 2016) (organization that supports and counsels foster parents had standing to challenge State's reimbursement rate to foster parents, where organization had to spend 100 hours per week responding to telephone calls from foster parents frustrated about inadequate rates), report and recommendation adopted, 2017 WL 4402461 (E.D.N.Y. Sept. 29,
2017); cj Fair Housing Council ofSuburban Philadelphia v. Montgomery Newspapers, 141 F.3d
71, 78 (3d Cir. 1998) (finding a lack of standing where "[t]he record [did] not establish that the [plaintiff] altered its operations in any way as a result of the allegedly discriminatory
advertisements or diverted any of its resources to a bona fide investigation"); Mental Hygiene Legal Service v. Cuomo, 13 F.Supp.3d 289, 299 (S.D.N.Y. 2014) (finding a lack of standing
where plaintiff "ha[d] not indicated that its activities [opposing the law] detracted the attention of [its] staff members from their regular tasks").
By contrast, courts have been reluctant to extend this doctrine to organizations engaged
primarily in social advocacy. This reluctance is grounded in language from Havens itself, which
recognized that standing cannot be asserted based on a mere "setback to the organization's abstract social interests." 455 U.S. at 379.
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Hence, in Citizens for Responsibility and Ethics in Washington v. Trump ("CREW'), 276 F.Supp.3d 174 (S.D.N.Y. 2017), the district court held that Citizens for Responsibility and Ethics in Washington ("CREW"), a non-profit organization whose self-proclaimed mission was to "protect the rights of citizens to be informed about the activities of government officials, ensure the integrity of government officials, protect the political system against corruption, and reduce the influence of money in politics," id. at 180 (alterations omitted), did not have standing to seek declaratory and injunctive relief against the President of the United States for violations of the Emoluments Clause. Unlike the organizational plaintiffs in the above-mentioned cases, CREW did not provide legal or social services to anyone. Rather, the organization's work involved "research, advocacy, litigation, and education, all aimed at raising public awareness about the influence of outside special interests on public officials." /d. The court rejected CREW's argument that it had incurred an injury by "devot[ing] significant resources to identify and counteract [the President's] alleged violations of the Emoluments Clauses, including through the use of 'every member of CREW's research team on a near-daily basis' and 'the hiring of two additional senior attorneys,' as well as its efforts to explain the alleged violations to stakeholders, including the press, and assist and counsel others in counteracting [the President's] alleged violations." Id at 189. As the court explained:
... CREW's entire reason for being is to investigate and combat corruption and reduce the influence of money in politics through, among other things, education, advocacy, and litigation. CREW is thus not wasting resources by educating the public and issuing statements concerning the effects of [the President's] alleged constitutional violations or even by filing suit; this is exactly how an organization like CREW spends its resources in the ordinary course. /d. at 191-192.
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Similarly, in Center for Food Safety v. Price, 2018 WL 4356730 (S.D.N.Y. Sept. 12, 20 18), the district court held that organizations whose missions included "protecting people from eating unsafe food and ensuring food safety and the integrity of the food system" lacked standing to challenge regulations promulgated by the Food and Drug Administration ("FDA") that would allegedly weaken FDA's ability to oversee the safety of food additives. The court held that, to the extent the organization diverted resources to counteracting the regulation at issue, "[t]hese purported injuries are not sufficiently distinct from the general mission of the organizations at issue..... [T]o allow standing based on these allegations alone would mean that any entity that spends money on an issue of particular interest to it would have standing, which would in tum contravene the principle that an entity's 'mere interest in a problem' cannot support standing." !d. at *5 (quoting Sierra Club, 405 U.S. at 739).
In National Congress for Puerto Rican Rights ("NCPRR"), v. City ofNew York, 15 F.Supp.2d 154 (S.D.N.Y. 1999), the district court held that a civil rights group that "expends substantial resources at the city, state and national levels to advocate reforms to end police misconduct," id. at 159, could not sue on its own behalf to challenge New York City's stop-andfrisk practices. Importantly, there was no claim that the organization provided direct services, such as referrals or reimbursement of legal expenses, to or on behalf of people subject to racial discrimination. See id. at 165. Rather, its "interest in ending the unconstitutional practices of the [street crime unit] [was] a generalized concern related to its abstract social interest in eliminating discrimination against Puerto Ricans." !d.
These cases are consistent with the prevailing rule in the District of Columbia Circuit, which hears numerous challenges to federal power by interested lobbying groups and therefore may be regarded as a persuasive authority in this area of law. See Center for Law and Educ. v.
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Department ofEduc., 396 F.3d 1152, 1162 (D.C. Cir. 2005) (holding that advocacy groups
lacked standing to challenge the composition of a Department of Education rulemaking committee where "the only 'service' impaired is pure issue-advocacy-the very type of activity
distinguished by Havens"); National Taxpayers Union, Inc. v. U.S., 68 F.3d 1428, 1434 (D.C.
Cir. 1995) ("The impact of Section 13208 upon [plaintiffs] programs, such as its educational
and legislative initiatives, also does not constitute an injury in fact."); Environmental Working Group v. United States Food and Drug Administration, 301 F.Supp.3d 165, 172 (D.D.C. 2018)
("But injuries to an organization's government lobbying and issue advocacy programs cannot be used to manufacture standing, because that would allow lobbyists on either side of virtually any
issue to take the Government to court"). In American Soc. for Prevention ofCruelty to Animals v. Feld Entertainment, Inc., 659 F.3d 13,26-27 (D.C. Cir. 2011), the District of Columbia Circuit questioned, in dicta, its previous statement in Center for Law & Education that
impairments to "pure issue-advocacy" cannot constitute an injury in fact. However, more recent decisions by the District of Columbia Circuit have reaffirmed the bar against standing based on
"pure issue-advocacy." Electronic Privacy Information Center v. Federal Aviation Administration, 892 F.3d 1249, 1255 (D.C. Cir. 2018); People for the Ethical Treatment of Animals v. U.S. Dept. ofAgriculture, 797 F.3d, 1087, 1094 (D.C. Cir. 2015); National Ass 'n of Home Builders v. E.P.A., 667 F.3d 6, 12 (D.C. Cir. 2011).
In sum, the law recognizes that organizations engaged in providing social services have a meaningful interest in their ability to carry on that work. Accordingly, the appropriate standing inquiry is whether the challenged state law, because of its detrimental effect on the community served by the organization (or upon the organization itself), will require the organization to devote resources remediating the law's harmful effects in a way that limits its ability to provide
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the same level of services as before. If so, the organization's institutional mission has been harmed. By contrast, an organization whose primary endeavor is to change or enforce the law, whether by communicating directly with government officials, community leaders, or the public, occupies no position different from that of a concerned citizen. And whatever else may be said of the standing doctrine, it clearly forbids citizen suits. While the distinction between social services and political activism may sometimes appear tenuous, see American Soc. for Prevention ofCruelty to Animals, 659 F.3d at 27, it is also the most rational way to reconcile our precedents within the clear limitations that the Supreme Court has placed on Article III standing.
Here, YAFFED's arguments for standing are almost indistinguishable from those unsuccessfully asserted in Center for Food Safety, CREW and NCPRR, supra. As stated in the
complaint: Over the past 6 years, YAFFED has zealously advocated for yeshiva students' right to education. YAFFED's work includes advocacy aimed at both New York State and New York City officials, outreach efforts aimed at the Hasidic community, and education efforts aimed at raising awareness of the issue with the general public.
The Felder Amendment has ... forced YAFFED to shift valuable resources away from its traditional advocacy and education efforts. Instead of advocating that the state and city enforce the laws requiring a substantially equivalent education, YAFFED has had to focus now on advocating in opposition to the Felder Amendment and to have the Felder Amendment declared unconstitutional. (Compl. ~~ 16, 92). YAFFED's complaint and supporting materials contain repeated references to YAFFED's advocacy mission and to the fact that the Felder Amendment will simply require it to shift its message. (Compl. ~ 18 ("YAFFED is an advocacy group committed to improving educational curricula within ultra-Orthodox schools"); ~ 52 ("YAFFED's work includes advocacy aimed at both New York State and New York City officials, outreach efforts aimed at the Hasidic community, and education efforts aimed at raising awareness of the issue with the
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general public");~ 53 ("For the first few years, YAFFED's advocacy efforts went ignored by NYSED and the NYCDoE.... In July 2015, however, YAFFED's advocacy began to bear fruit"); ~ 56 ("YAFFED has also educated State officials ... and advocated for laws or regulations ...."); id ("YAFFED's advocacy efforts resulted in two bills filed in the New York State Legislature");~ 60 ("YAFFED's many attempts at educating and advocating to fix sub-
standard education at Hasidic yeshivas has been time consuming and costly. From its founding in 2012 through April 2018, YAFFED has spent significant resources in furtherance of its
advocacy"); ~ 10 (guidelines based on the Felder Amendment "will require additional and different advocacy, strategies, and methods by YAFFED to combat the relaxed standards now
recited in the Felder Amendment");~ 91 ("The Felder Amendment has and will impact
YAFFED's advocacy, potentially rendering moot some of its work over the past six years");~ 101 ("Plaintiff ... will be required to permanently shift [the] focus of [its] advocacy and
completely recreate [its] reform efforts")) (emphasis added). Although Moster's declaration contains a passing reference to direct services, including
referrals and resources for members of the Hasidic community interested in getting a secular education (Moster Decl. ~ 11 ), YAFFED has not claimed in the complaint or in any of its supporting materials that its ability to provide these services has been impacted by the Felder
Amendment. See Fair Housing Council ofSuburban Philadelphia, 141 F.3d at 78; Mental Hygiene Legal Service, 13 F.Supp.3d at 299; cf Ragin, 6 F.3d at 905.
YAFFED also claims that the Amendment has impaired its fundraising ability, harmed its reputation, dampened enthusiasm for its cause, and forced it to take precautions after at least one death threat against Moster. (Moster Decl. ~~57-58, 60). 13 This type of harm might qualify as an
13 It goes without saying that this Court condemns any threats of violence against YAFFED.
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injury in fact, at least where the organization is directly targeted by a state action or policy. See Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638,650-651 (2d Cir. 1998). In this case, however, YAFFED has not convincingly explained how these injuries are fairly traceable to the Felder Amendment or how they would be redressed if it were declared void. See Taylor v. Bernanke, 2013 WL 4811222, at* 12 (E.D.N.Y. Sept. 9, 2013) (plaintiffs affiliated with "Occupy" movement lacked standing to challenge delay in issuing joint final rulemaking under the Volcker Rule; plaintiffs argued that "the delay has frustrated [their] advocacy efforts because, as time passes, 'the Occupy movement' has 'lost momentum and public visibility' and will find it harder to garner public support for enforcing strict bank compliance with the Volcker Rule").
Accordingly, the Court is driven to conclude that YAFFED lacks standing.
IV.
YAFFED lacks standing for the additional reason that its claims are constitutionally unripe.
"[T]he best way to think of constitutional ripeness is as a specific application of the actual injury aspect of Article III standing.... [T]o say a plaintiffs claim is constitutionally unripe is to say the plaintiffs claimed injury, if any, is not 'actual or imminent,' but instead 'conjectural or hypothetical.'" National Organization for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (quoting Lujan, 504 U.S. at 560); see also Bronx Household ofFaith v. Board ofEduc. ofCity ofNew York, 492 F.3d 89, Ill (2d Cir. 2007) (Leval, J., concurring) ("The concept of ripeness assumes that the relationship between the parties might at some point ripen into an injury sufficiently direct and realized to satisfy the requirements of Article III standing. It recognizes, however, that some disputes mature in stages, going through preliminary phases
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during which the injury is as yet but a speculative possibility, too remote or hypothetical to warrant present submission to a federal court."). 14
The Second Circuit has held that an organization asserting standing based on a diversionof-resources theory "must show that both the anticipated expenditures and ensuing harm to their organizations' activities are 'certainly impending.' "Knife Rights, 802 F.3d at 389 (quoting Clapper, 568 U.S. at 409); accord Aleksanian v. Cuomo, 2017 WL 2881134, at *4 (E.D.N.Y. Jul. 6, 2017); see also Clapper, 568 U.S. at 416 ("[plaintiffs] cannot manufacture standing merely by
14 Constitutional ripeness should be distinguished from prudential ripeness: "tttatlaAeiphhhhaCnfnreeecterfeohetaeapimrrnalsdcdceaonestaeljaswietwuclnotniiauedstdlgeyuIiuriInrnt.cetttIchihooia.ooIaeoeatttfngin.xtovapt.danaht.cnoarloihmeucczsfePreduuajiiasrutpnberupnhuadennalmaadecianttortceiiyctetoaciniamtsaelnuuomntslrsiaraydyfaroeyliwl.estraffdhni,Inrlirpaietlaotiselepitptmpdcsre,henrpouornadeioetnctctveteetctcoumscertihernsihminaenearsseltnqaivelistoyssorunec,ucnt,uisahoroccsttsceathftuoehosiatterntno,annhtinisgsttlssdet.bititkfaigBetnhtrpteuooeueoauttunmottsirtacinoettooawvaiannreldnsnoaeahrseealditecleicdhlwiaezwnrlnalseaiibitgisgsadrtloesh,aihlccnucrriltioboonyeegsscuegusmouttaroarhhbnttintrlshenelecddiramgtrmemmeumtetercaletiaemrteeletymiayaasamdirtndnbnrieeuueieoiirecsnsnnsqondipgemgltudiehulobieoesaoattrndyosdeyeftf make easier or less controversial."
National Organization/or Marriage, 714 F.3d at 668 (quoting Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003)). Iww'1don6ehinc7Stehiugtd(hso2reaeou0"rnu1rcna4rBade)c.sscoe(Ae"stunhnTrwtattohtrimoettahhanariefeyynfi"eLdripxtmeisrtsceuatjlundtivinrt.eoienrsDnedttsirooiapecflhiot,hti"enhoaadernuraespt"an,hritsiceasnarvuwcstiinehroptaauolunnelnaidlmtclh'opyhoanratuuuvs"sndteaifeStluunfausetgtpididogareeenilrn'emaagmrllei,"p'cpCe'o' [en"outte])urihsttr(i'satqsotcugnoraroebeostrqltiusinug'nsgeeacdsrtlsLtiia.ooeiimSnusxesmitsenodano5shroo7uken3mbaIjtnrueUtasatt.s'nISei,cdtn.oIisna1ibco4.l9nev,. Static Control Components, Inc., 572 U.S. 118, 125-126 (2014)). Because the Court holds that YAFFED lacks standing, it need not dwell on the issue of prudential ripeness.
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inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending"). 15 While this standard is necessarily inexact, courts are "inclined to find standing" if it can be said that" 'there is no better time' to resolve the issues raised by the parties-that is, when they 'will be in no better position later than now.' "Brooklyn Center for Independence ofthe Disabled v. Bloomberg, 290 F.R.D. 409, 415 (S.D.N.Y. 2012) (quoting Alliance ofAmerican Insurers v. Cuomo, 854 F.2d 591, 599 (2d Cir. 1988)). Such is not the case here.
YAFFED's diversion-of-resources argument, to the extent it has any merit, must be grounded in the prospect that the Felder Amendment will ultimately result in Hasidic yeshivas offering a substandard secular education, compared to the instruction that they would offer if the Felder Amendment were declared void. After all, it is YAFFED's mission-"to ensure that all students within the ultra-Orthodox community receive the critical tools and skill sets needed for long-term personal growth and self-sufficient futures"-that the Felder Amendment is alleged to
t1sUt4leh5i6hrufpeLLstp4nerr.8aiBsnrtSoeeir2gtfao9etfisoaoamy.euetlt.tUstguref(ahnlecceCNa"utcta.etbnoeecS[tteoari1pesWsnmus.oiimtt,d6rotstntian2reaieo,]o4mgnoafsb8ntisn-irPiutsdneyn9i1tnhoattrta"nr,6,tmgeiolnele)rost7a2wudne,OkwaifF(r9t,g'f[q(hrg!iiro8ofifahtsruIeeagnihLurtnstnroc(htgacetmlcoeh1cditdee]n.aAbiah9pitermnilnbcthbvi7zoam,gtl.igyaceee9slhsveiheSntsu)Vasitpteivinalohtrhotnbn(ileselderroanao"i,fln,fgrmcltieorfufpienIoirnoiptrtnnctlleeytnfchulgrlacriind,eaeeaeirf.eiotmieMdfin2n'bonsvf:,vgi2ft.itlsa.atfopi1rrnaieigfnMoerArsraftafracutefjefuFlmshuirmeie-tlhna.anefprregm3cead-egyie,snegodrncdaste.menafsineit,contS3,ans'nsbhmfaortte7l7gt8saaeetcnei1fo6oio7ctnrmefeu4p,rrfBerNdmosFest)or3tiiFoh;oaahf.fmen8o"3ooin.stteBngr2n3pihderkeotaaad;usecsb(lvnc4tlcbnae2uaaalaciaht5bylxadtostitlhllai7uvit-eaeelot6talCp,atOidsdtrrlnret8rtesa4siy"mvi"ro9ornc5n.iwAg.sts;nttg,sg9eiaUht2shusevtnacasne0hte(osfnneoth'y1ife0a,en"sidztie1sttds0ep,cabaaeieut)iclcmtredIhltcleaibadshnil(ooniobmoiFsnC"acnnentaetf[.la)taiviS,dbplTrif.ornrentfeoueup.4m]ypeTfntsrclh8stn1itrgiahhtmaieee49tM,ceoWneel,as9od"aaanUlarao6BFtylnniseaollzr.r).cditeaSnar)dikerergApw;sifds.edisesaoetrrtrtnu3dV"geeh"idwnsAt)cin8ecc-eehbheNidgrftrm3,(ytollomencahea,yc7snedria3fntoohtt1ot.nyriba9itghunieb4nhrdtele3LUtrtclulgimbereFisieaRtnns(aaeFom.ne1tmti3igtrsho,fgln9rdeaaotnroei5hot8hn.ces,fdr7art8tta[eut3t)eto)a"]l (alterations in the original). 33

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frustrate. (Compl. ~ 15). However, as discussed above, the Felder Amendment by its terms does not require education officials to grant any such accommodation, and NYSED has issued guidelines which, for all intents and purposes, impose identical curriculum requirements on all private schools in the state, regardless of whether they are covered by the Felder Amendment. While the Revised Guidelines also require NYSED to consider the criteria set forth in the specific statutory text of the Felder Amendment when evaluating covered schools, this requirement would, if anything, subject those schools to a higher standard than non-covered schools. There is no indication that covered schools that fall short of the specific course and hour requirements in the Revised Guideline Toolkits will be deemed to comply with the substantial equivalence requirement so long as they meet the more relaxed Felder Amendment standards.
What YAFFED essentially seeks is an advisory opinion as to the constitutionality of the Felder Amendment, based on the possibility that NYSED might, in the future, apply it in a manner that disadvantages students at Hasidic yeshivas_. But this injury lacks the concreteness and immediacy required for standing under Article III, see Knife Rights, 802 F.3d at 389, . particularly in light of our judicial "policy of strict necessity in disposing of constitutional issues," Rescue Army v. Municipal Court ofCity ofLos Angeles, 331 U.S. 549, 568 (1947).
Accordingly, the Court holds that YAFFED's claim is constitutionally unripe.
v.
The dismissal of the action for lack of standing, and thus lack of a case or controversy, the "irreducible constitutional minimum" required by Article III of the Constitution, Lujan, 504 U.S. at 560, renders this Court without subject matter jurisdiction to address the other momentous issues that inhere in this case. For that reason, the Court denies YAFFED's motion for a preliminary injunction, and does not consider whether YAFFED would be likely to prevail
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Case 1:18-cv-04167-ILG-JO Document 68 Filed 01/16/19 Page 35 of 35 PageID #: 1285 s/I. Leo Glasser, USDJ