     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,
 4       on the 5th 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,
 4            Defendants-Appellees.*
 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
13   think it is necessary to remand for this purpose.1 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
