14-555-cv

U.L. v. New York State Assembly

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 5th 4 day of February, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 RICHARD C. WESLEY,

8 SUSAN L. CARNEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 U.L., individually and as father and

13 natural guardian of E.L., an infant

14 under the age of 18 years, 

15 Plaintiff-Appellant,

16

17 -v.- 14-555-cv

18

19 NEW YORK STATE ASSEMBLY, NEW YORK

20 STATE SENATE, SHELDON SILVER, in his

21 official capacity as Speaker of the

22 New York State Assembly, JEFFREY D.

23 KLEIN, in his official capacity as

24 President Pro Tempore of the New York

25 State Senate, and as Senate

26 Independent Democrat Conference

27 Leader, DEAN G. SKELOS, in his

28 official capacity as President Pro

1
1 Tempore of the New York State Senate,

2 and as Senate Republican Conference

3 Leader, STATE OF NEW YORK,

Defendants-Appellees.* 4

5 - - - - - - - - - - - - - - - - - - - -X

6

7 FOR APPELLANT: ELLIOT B. PASIK, Law Office of

8 Gerald P. Gross, Cedarhurst, New

9 York.

10

11 FOR APPELLEES: MARK H. SHAWHAN (Barbara D.

12 Underwood, Anisha Dasgupta, on

13 the brief), for Eric T.

14 Schneiderman, Attorney General

15 of the State of New York, New

16 York, New York.

17

18 Appeal from a judgment of the United States District

19 Court for the Southern District of New York (Griesa, J.).

20

21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

22 AND DECREED that the judgment of the district court be

23 AFFIRMED. 

24

25 Plaintiff-appellant U.L. appeals from the judgment of

26 the United States District Court for the Southern District

27 of New York (Griesa, J.), dismissing this case on the ground

28 that defendants-appellees enjoy sovereign and legislative

29 immunity. We assume the parties’ familiarity with the

30 underlying facts, the procedural history, and the issues

31 presented for review. 

32

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

34 religious school in New York, brings myriad constitutional

35 claims challenging New York’s child-protection laws, which

36 regulate New York public schools. 

37

38 We review de novo dismissals of claims under Federal

39 Rule of Civil Procedure 12(b)(1) or 12(b)(6). Jaghory v.

40 N.Y. State Dep’t of Educ., 131 F.3d 326, 329 (2d Cir. 1997). 

41 We agree with the district court that U.L. cannot sue the

42 State of New York, the New York State Assembly, or the New

* The Clerk of Court is respectfully directed to

amend the official caption in this case to conform with the

caption above.

2
1 York State Senate because those defendants enjoy sovereign

2 immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465

3 U.S. 89, 100 (1984); Pikulin v. City Univ. of N.Y., 176 F.3d

4 598, 600 (2d Cir. 1999) (per curiam) (articulating test for

5 whether governmental entity is “arm of the state”). The

6 state legislator defendants enjoy immunity for their

7 legislative acts. State Emps. Bargaining Agent Coal. v.

8 Rowland, 494 F.3d 71, 88 (2d Cir. 2007). 

9

10 U.L. argues that, even if his claims are barred as

11 presently pleaded, he should be given an opportunity to

12 replead them to avoid the immunity doctrines. We do not

think it is necessary to remand for this purpose.1 13 Assuming

14 U.L. could successfully plead around the immunity doctrines,

15 his claims would still fail as a matter of law. The

16 challenged child-protection laws, which are unquestionably

17 secular, are equally inapplicable to all private schools,

18 religious and secular. Nothing about them offends the

19 Establishment or Free Exercise Clauses of the First

20 Amendment. See Lemon v. Kurtzman, 403 U.S. 602, 612-13

21 (1971); Church of the Lukumi Babalu Aye, Inc. v. City of

22 Hialeah, 508 U.S. 520, 533 (1993). 

23

24 U.L.’s claims under the Equal Protection and Due

25 Process Clauses of the Fourteenth Amendment likewise fail,

26 because the laws neither target a suspect class nor impair

27 the exercise of a fundamental right, and easily pass muster

28 under rational basis review. See Romer v. Evans, 517 U.S.

29 620, 631 (1996).

30

31 For the foregoing reasons, and finding no merit in

32 U.L.’s other arguments, we hereby AFFIRM the judgment of the

33 district court.

34

35 FOR THE COURT:

36 CATHERINE O'HAGAN WOLFE, CLERK

37

1 Because remand is unnecessary, U.L.’s demand that

Judge Griesa be disqualified from any future proceedings is

moot.

3