Kristoffersson v. Port Jefferson Union Free School District

EASTERN DISTRICT OF NEW YORK 10:01 am, Se p 18, 2023

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MADELEINE KRISTOFFERSSON, on behalf of R.R., U.S. DISTRICT COURT

an infant, as her natural mother and guardian, EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Plaintiff, MEMORANDUM & ORDER

22-CV-01741 (JMA) (ARL)

-against-

PORT JEFFERSON UNION FREE SCHOOL DISTRICT,

ERIC HARUTHUNIAN, High School Principal,

JESSICA SCHMETTAN, Superintendent,

and MATTHEW SEFICK,

Defendants.

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AZRACK, United States District Judge:

Plaintiff Madeleine Kristoffersson, mother of R.R., a student at Earl L. Vandermeulen High

School in Port Jefferson, New York, alleges that Defendants violated R.R.’s First Amendment

right to freedom of speech, as well as R.R.’s rights under the Fourteenth Amendment’s Equal

Protection Clause, when they refused to publish a poem submitted by R.R. to the high school’s

literary magazine. Plaintiff asserts constitutional and statutory claims on R.R.’s behalf under New

York state law as well. She seeks compensatory and punitive damages, injunctive relief, and

attorneys’ fees and costs.

Currently before the Court are Defendants’ motion to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, (ECF No. 21), and Plaintiff’s

motion for partial summary judgment on her federal claims pursuant to Federal Rule of Civil

Procedure 56(a). (ECF No. 36.) For the following reasons, Defendants’ motion is GRANTED,

Plaintiff’s motion is DENIED, and the complaint is DISMISSED.

I. BACKGROUND

A. Facts

In April 2021, R.R., then a tenth-grade student at Earl L. Vandermeulen High School, wrote

No. 1.) The poem is reproduced in its entirety below.

From Momma’s hands, you had not any chance.

The street, the ‘hood made you so young ashamed

To stand tall, to control your circumstance.

“Black man, it’s you we’ll crack,” white men proclaimed;

“Stay down,” they say, your fate is in our hands.

Obey, ok, obey me, I’m the cop

Who kneels upon your naked soul, who stands

On top your darkened head until you stop

Your sorry cry for mamma; take no breath,

I bring justice here, pressed upon your neck.

If I decide, you now face certain death,

A fate deserved, ‘cuz you passed a bad check.

You can’t breathe? Then cease your black man drama,

I will make you weep for “Mamma! Mamma!”

(Id. ¶ 23.) R.R. “intended the sonnet ironically, . . . to reflect the contemptuous racial hatred

demonstrated by a white figure of authority for a helpless African American,” “to capture the

deeply bred racially motivated cause of the death of George Floyd,” and “to convey the intense

reason for the nation-wide reaction to Chauvin’s murder of George Floyd” on May 25, 2020. (Id.

¶¶ 24–26.)

R.R. subsequently submitted the poem to The Mast, “a literary magazine published by

Defendants.” (Compl. ¶¶ 14, 27–28.) As the “high school’s literary magazine,” The Mast was

published in print and online twice per school year and distributed to students, faculty, and

members of the Port Jefferson community. (Id. ¶¶ 16–17.) The Mast was edited “[a]t all times”

by high school students; Matthew Sefick, an English teacher at the high school and The Mast’s

faculty advisor; and Eric Haruthunian, the high school’s principal. (Id. ¶ 18.) Defendants and The

Mast’s student editors solicited students to submit short stories, poems, and photos for publication.

(Id. ¶¶ 15, 19.) Although The Mast’s student editors “were charged with choosing amongst the

various submitted poems, short stories and photos,” “[a]t all times, the choices . . . were subject to

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to review by Haruthunian, who “was charged with making a final decision as to whether any

literary piece could be published in The Mast,” with Haruthunian’s final decisions “subject to

approval” by Jessica Schmettan, the superintendent of the Port Jefferson Union Free School

District. (Id. ¶ 21.)

After R.R. submitted her poem to The Mast, “Defendants acknowledged that the sonnet

was very well-written.” (Compl. ¶ 27.) Nevertheless, “Defendants . . . forbade the editors of The

Mast to publish the sonnet,” with Schmettan’s authorization. (Id. ¶¶ 28–29.) R.R. “urged” and

“protested” that the sonnet should be published in The Mast, but Defendants “refused to allow the

sonnet to be published for the reason that it would allegedly create adverse emotional reactions

and strife in the Port Jefferson community, amongst students and faculty, due to the sonnet’s

allegedly controversial content.” (Id. ¶ 32.)

B. Procedural History

Plaintiff commenced this action on March 29, 2022, claiming that Defendants’ refusal to

publish R.R.’s poem violated the First Amendment, the Fourteenth Amendment, and New York

law. After Defendants submitted a pre-motion conference letter regarding their proposed motion

to dismiss, (ECF No. 9), to which Plaintiff responded, (ECF No. 12), the Court waived its pre-

motion conference requirement and directed the parties to submit a briefing schedule. (Electronic

Order dated May 18, 2022.)

On August 31, 2022, while the parties were briefing Defendants’ motion, Plaintiff filed her

own pre-motion conference letter regarding a motion for partial summary judgment. (ECF No.

20.) The Court again waived the pre-motion conference requirement, (Electronic Order dated

Sept. 2, 2022), and the parties subsequently briefed Plaintiff’s motion.

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The Court first addresses Defendants’ motion to dismiss. Defendants contend that

Plaintiff’s federal law claims should be dismissed for failure to state a claim, and that even if

Plaintiff plausibly alleged a constitutional violation, the individual Defendants are entitled to

qualified immunity. (Defs.’ Mem. at 1–2, ECF No. 23.) They also argue that Plaintiff’s state law

claims should be dismissed for failure to state a claim, and because Plaintiff did not comply with

the notice of claim requirement under New York Education Law § 3813. (Id.) Plaintiff opposes

Defendants’ motion on all fronts. (Pl.’s Opp’n, ECF No. 25.)

A. Legal Standard Under Rule 12(b)(6)

To survive a motion to dismiss brought under Rule 12(b)(6), “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citing Twombly, 550 U.S. at 556). Although a court must accept all factual allegations in the

complaint as true, it is “not bound to accept as true a legal conclusion couched as a factual

allegation.” Twombly, 550 U.S. at 555. Ultimately, if the plaintiff’s allegations “have not nudged

their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id.

at 570.

In ruling on a Rule 12(b)(6) motion, “‘a district court may consider the facts alleged in the

complaint, documents attached to the complaint as exhibits, and documents incorporated by

reference in the complaint.’” United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir.

2021) (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)), cert. denied,

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the court may nevertheless consider it where the complaint relies heavily upon its terms and effect,

thereby rendering the document integral to the complaint.’” Id. (quoting DiFolco, 622 F.3d at

111). When presented with matters outside the pleadings that are not properly considered on a

Rule 12(b)(6) motion, a district court may “either elect to exclude [the] documents and rule on

[the] motion to dismiss, or consider the documents and ‘convert the motion to one for summary

judgment and give the parties an opportunity to conduct appropriate discovery and submit the

additional supporting material contemplated by Rule 56.’” Peterson v. Wells Fargo Bank, N.A.,

No. 22-1343-CV, 2023 WL 4363239, at *2 (2d Cir. July 6, 2023) (summary order) (quoting

Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002)); see also Fed. R. Civ. P. 12(d).

In connection with her opposition to Defendants’ motion, Plaintiff submitted a 25-page

affidavit by R.R., (ECF No. 24), along with 21 exhibits, which include, among other documents,

past issues of The Mast; emails among R.R., student editors, and Defendants regarding her poem;

and 50-h examination transcripts. Defendants contend that the Court should not consider these

materials in resolving their motion to dismiss. (Defs.’ Reply at 1–2 & n.2, ECF No. 26.) The

Court agrees.

Although this case “presents the atypical situation where [a] plaintiff[] submit[s] extrinsic

documents in their opposition to [the defendant]’s motion to dismiss,” the principles outlined

above still apply. Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 122

(S.D.N.Y. 2010). Indeed, “[c]ourts in this Circuit have made clear that a plaintiff may not shore

up a deficient complaint through extrinsic documents submitted in opposition to a defendant’s

motion to dismiss.” Id. at 122–23 (collecting cases). As Judge Liman recently explained,

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exhibit to the complaint, and who has not explicitly incorporated the document by

reference and included the relevant allegations about the document in the

complaint, is not ordinarily permitted—when it suddenly becomes expedient—to

rely upon the document by attaching it to a declaration submitted in response to a

motion to dismiss.

Wade Park Land Holdings, LLC v. Kalikow, No. 21-CV-1657, 2023 WL 2614243, at *10

(S.D.N.Y. Mar. 23, 2023) (citation omitted). None of the documents submitted by Plaintiff were

attached to the complaint, and Plaintiff has made no attempt to demonstrate that the Court may

properly consider them in ruling on Defendants’ Rule 12(b)(6) motion. Aside from a bare

recitation of the general principles outlined above, (see Pl.’s Opp’n at 8 n.1), she does not argue

that they are incorporated by reference into the complaint, “integral” to the complaint, or subject

to judicial notice. Therefore, the Court will exclude R.R.’s affidavit and the attached exhibits in

ruling on the motion to dismiss. The Court declines to convert Defendants’ motion to one for

summary judgment.

B. First Amendment Claim

The gravamen of Plaintiff’s complaint is that Defendants violated R.R.’s First Amendment

right to freedom of speech by refusing to publish her poem in The Mast.

It is well established that “students do not ‘shed their constitutional rights to freedom of

speech or expression,’ even ‘at the school house gate.’” Mahanoy Area Sch. Dist. v. B. L. by &

through Levy, 141 S. Ct. 2038, 2044 (2021) (quoting Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503, 506 (1969)). At the same time, the Supreme Court “ha[s] also made clear that

courts must apply the First Amendment ‘in light of the special characteristics of the school

environment.’” Id. (quoting Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

Courts have created “various tests or ‘standards for assessing whether a school’s censorship of

student speech is constitutionally permissible.’” Collins v. Putt, 979 F.3d 128, 132 (2d Cir. 2020)

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relevant to this case, Hazelwood and Tinker, cover “two categories of student expression in the

school environment, each of which merits a different degree of judicial scrutiny in connection with

school-imposed speech restrictions.” Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d

617, 627 (2d Cir. 2005). Because Tinker is “more protective of student speech than Hazelwood,”

Collins, 979 F.3d at 132 (citing DeFabio v. E. Hampton Union Free Sch. Dist., 623 F.3d 71, 79

(2d Cir. 2010)), Plaintiff’s First Amendment claim turns largely on which of these two standards

is applied.

Defendants contend the Court should analyze Plaintiff’s claim under Hazelwood. (Defs.’

Mem. at 9.) Under Hazelwood’s “deferential standard,” Collins, 979 F.3d at 132, if The Mast

constituted a “school-sponsored expressive activit[y],” then Defendants’ refusal to publish R.R.’s

poem was permissible “so long as their actions [were] reasonably related to legitimate pedagogical

concerns.” Hazelwood, 484 U.S. at 273. Student speech is considered “school sponsored” under

Hazelwood if “students, parents, and members of the public might reasonably perceive” the speech

“to bear the imprimatur of the school.” Id. at 271.

Plaintiff, on the other hand, insists that Tinker governs her First Amendment claim. (Pl.’s

Opp’n at 2.) Tinker applies to “‘a student’s personal expression that happens to occur on the school

premises,’” Collins, 979 F.3d at 133 (quoting Hazelwood, 484 U.S. at 271), i.e., speech that is not

“school sponsored.” Under Tinker, “school officials may regulate student speech that the school

does not sponsor if that speech would ‘materially and substantially disrupt classwork and discipline

in the school.’” Id. (quoting Guiles, 461 F.3d at 325).

Turning to the complaint, Plaintiff alleges that The Mast “is the high school’s literary

magazine . . . published by Defendants,” which “carrie[s] short stories, photos, and poems written

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community members.” (Compl. ¶¶ 8, 14–17.) Plaintiff further alleges that “[a]t all times,” The

Mast “was edited by Port Jefferson students, the faculty advisor, and school principal, as selected

by Defendants,” who “solicited Port Jefferson students to submit poems, short stories and photos

for publication,” and who “were charged with choosing amongst the various submitted poems,

short stories and photos[.]” (Id. ¶¶ 18–20.) Also, “[a]t all times,” the student editors’ decisions

“were subject to approval or disapproval by the said faculty advisor, and the High School Principal

was charged with making a final decision as to whether any literary piece could be published in

The Mast,” with “final” authority resting in the Superintendent. (Id. ¶ 21.) Taken together,

Plaintiff’s allegations establish that (i) The Mast is the literary magazine of Earl L. Vandermeulen

High School; (ii) it is composed of works submitted by the school’s students; (iii) the works are

selected by student editors, whose decisions are subject to review by school officials, specifically,

Sefick, Haruthunian, and Schmettan; (iv) it is published by the school; and (v) it is distributed to

students, faculty, and members of the Port Jefferson community.

Based on the above allegations, the Court concludes that Hazelwood applies to Plaintiff’s

First Amendment claim because The Mast bears “hallmarks of school sponsorship.” Collins, 979

F.3d at 133. Courts have relied on a combination of these very factors in concluding that student

speech was school sponsored. For example, in R.O. ex rel. Ochshorn v. Ithaca City School District,

645 F.3d 533 (2d Cir. 2011), the Second Circuit affirmed the district court’s conclusion that a

school newspaper was school sponsored. In reaching this decision, the Ochshorn court relied in

part on the fact that the school district paid a teacher to act as the newspaper’s faculty advisor, and

that the newspaper was never published without the advisor’s oversight. Id. at 541. See also, e.g.,

Robertson v. Anderson Mill Elementary Sch., 989 F.3d 282, 289 (4th Cir. 2021) (determining that

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copies of that booklet home with the students for their families to read”); Collins, 979 F.3d at 133–

34 (relying on “supervision of a college faculty member,” among other factors, in concluding that

blog post assignment was school-sponsored speech); A.M. ex rel. McKay v. Taconic Hills Cent.

Sch. Dist., 510 F. App’x 3, 8 (2d Cir. 2013) (holding that Hazelwood applied to student speech at

graduation ceremony because, among other factors, student council’s planning of event was

subject to faculty oversight, and school district “managed” the ceremony, “review[ed] the speeches

before they were delivered,” and invited students’ parents to the ceremony); Fleming v. Jefferson

Cty. Sch. Dist. R-1, 298 F.3d 918, 930 (10th Cir. 2002), as amended on denial of reh’g and reh’g

en banc (Aug. 16, 2002) (concluding that art project bore imprimatur of school because school

district solicited participation, had faculty members supervise project, and exercised editorial

control over submissions to project); Vetrano v. Miller Place Union Free Sch. Dist., 369 F. Supp.

3d 462, 472 (E.D.N.Y. 2019) (holding that student skit in variety show was school-sponsored

speech because school “reviewed and approved the [a]cts and [s]kits”).1

In arguing that Tinker applies, Plaintiff avoids the allegations in her complaint and instead

relies on the extrinsic materials submitted with her opposition. (Pl.’s Opp’n at 3–5.) As the Court

1 Although some courts have drawn a distinction between mandatory, in-classroom activities, on the

one hand, and voluntary, extracurricular activities, on the other, see, e.g., Romano v. Harrington, 725 F.

Supp. 687 (E.D.N.Y. 1989), Hazelwood itself rejects such a distinction. As the Second Circuit recently

explained, “Hazelwood applies to student speech that ‘may fairly be characterized as part of the school

curriculum, whether or not [it] occur[s] in a traditional classroom setting, so long as [it is] supervised by

faculty members and designed to impart particular knowledge or skills to student participants and

audiences.’” Collins, 979 F.3d at 133 (quoting Peck, 426 F.3d at 628); see also Hosty v. Carter, 412 F.3d

731, 736 (7th Cir. 2005) (“Thus although, as in Hazelwood, being part of the curriculum may be a sufficient

condition of a non-public forum, it is not a necessary condition.” (emphases in original)); A.M. ex rel.

McKay v. Taconic Hills Cent. Sch. Dist., No. 10-CV-20, 2012 WL 177954, at *4 (N.D.N.Y. Jan. 23, 2012)

(“[T]he Hazelwood Court explicitly stated its holding was not limited to ‘expressive activities [that] . . .

occur in a traditional classroom setting.’” (quoting Hazelwood, 484 U.S. at 271)), aff’d, 510 F. App’x 3 (2d

Cir. 2013). Accordingly, the Court declines to adopt such a distinction here.

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submitted in opposition” to Defendants’ motion to dismiss. Madu, 265 F.R.D. at 122–23. Because

Plaintiff’s allegations establish that The Mast was “‘school-sponsored, or at least . . . constituted

an expressive activit[y] that students . . . and members of the public might reasonably perceive to

bear the imprimatur of the school,’” Collins, 979 F.3d at 134 (quoting Ochshorn, 645 F.3d at 541),

Hazelwood—not Tinker—applies here.

Next, “[t]he operative question” under Hazelwood is whether Defendants’ refusal to

publish R.R.’s poem was “‘reasonably related to legitimate pedagogical concerns.’” McKay, 510

F. App’x at 8 (quoting Hazelwood, 484 U.S. at 273). Plaintiff alleges that Defendants refused to

publish the poem due to its “allegedly controversial content.” (Compl. ¶ 32.) However, the Court

agrees with Defendants that their alleged desire to distance the school from “a controversial topic”

and “avoid creating an emotional reaction among the student body” constitutes a legitimate

pedagogical concern. (Defs.’ Mem. at 9.) Plaintiff argues that no such rule can be found in

Hazelwood or McKay. (Pl.’s Opp’n at 10.) But, as Hazelwood itself instructs, schools must

“retain the authority to refuse to sponsor student speech that might reasonably be perceived . . . to

associate the school with any position other than neutrality on matters of political controversy.”

Hazelwood, 484 U.S. at 272. And other courts have reached the same conclusion. See Fleming,

298 F.3d at 925–26 (“Many cases have applied a Hazelwood analysis to activities outside the

traditional classroom where, so long as the imprimatur test is satisfied, the pedagogical test is

satisfied simply by the school district’s desire to avoid controversy within a school environment.”

(collecting cases)); see also Planned Parenthood of S. Nevada, Inc. v. Clark Cty. Sch. Dist., 941

F.2d 817, 829 (9th Cir. 1991) (“A school’s decision not to promote or sponsor speech that is

unsuitable for immature audiences, or which might place it on one side of a controversial issue, is

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afforded substantial deference.” (citations omitted)); McKay, 2012 WL 177954, at *5 (explaining

that school’s desire to avoid potential controversy by removing student’s religious blessing from

graduation ceremony speech constituted legitimate pedagogical concern); Weingarten v. Bd. of

Educ. of City Sch. Dist. of City of New York, 680 F. Supp. 2d 595, 601–02 (S.D.N.Y. 2010)

(holding that school district’s “wish to maintain neutrality on controversial issues” through ban on

teachers’ political campaign buttons in classroom was “a legitimate pedagogical concern”).

Accordingly, Plaintiff has failed to plausibly allege that Defendants’ refusal to publish R.R.’s

poem was improper under Hazelwood.

The Court’s analysis does not end here, however, because Plaintiff also contends that

Defendants “blatantly engaged in viewpoint discrimination[.]” (Pl.’s Opp’n at 7.) Viewpoint

discrimination “occurs when the government seeks to regulate ‘speech when the specific

motivating ideology or the opinion or perspective of the speaker is the rationale for the

restriction.’” McKay, 510 F. App’x at 8 (quoting Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819, 829 (1995)). On the other hand, content discrimination “entails the exclusion

of a ‘general subject matter’ from a forum, rather than a ‘prohibited perspective.’” Id. (quoting

Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30, 39 (2d Cir. 2011)). This distinction is

crucial because “a manifestly viewpoint discriminatory restriction on school-sponsored speech is,

prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests.” Peck,

426 F.3d at 633 (emphasis in original); see also Collins, 979 F.3d at 135. By contrast, where the

government engages in content-based discrimination in the context of school-sponsored speech,

the “Hazelwood standard does not require that the guidelines be the most reasonable or the only

reasonable limitations, only that they be reasonable.” Peck, 426 F.3d at 630 (citation and quotation

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Plaintiff argues that “Defendants were motivated by a racist reason to suppress the sonnet

. . . , a not-unlikely motive in view of the circumstances, including the subject matter of the sonnet

and the purported unspecific fears of Defendants as to the reaction of the nearly all white school,

faculty and community.” (Pl.’s Opp’n at 7.) But Plaintiff’s assertion that Defendants were

“motivated by a racist reason” is entirely conclusory and therefore the Court need not accept it as

true. See Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014) (holding that court is not “required to

accept as true allegations that are wholly conclusory”). Moreover, Plaintiff nowhere alleges that

Defendants permitted other, contrary viewpoints related to Floyd’s murder to be published in The

Mast. Instead, Plaintiff simply claims that “other students’ poems were published” in The Mast.

(Compl. ¶ 57.) This bare allegation offers no support to her claim that R.R. “was discriminated

against for a viewpoint expressed in [her poem] rather than for the manner in which [s]he expressed

[her]self.” Collins, 979 F.3d at 135 (concluding that deletion of student blog post was content-

based, rather than viewpoint-based, restriction). As a result, Plaintiff has not plausibly alleged that

Defendants engaged in impermissible viewpoint discrimination, rather than permissible content-

based discrimination.2

2 Plaintiff’s additional argument that The Mast should be considered a public forum or, at the very

least, a limited public forum, (Pl.’s Opp’n at 5, 9), does not save her claim. First, she does not allege that

Defendants “permitted ‘indiscriminate use by the general public,’ as is required to create a traditional public

forum or designated public forum.” Ochshorn, 645 F.3d at 540 (quoting Hazelwood, 484 U.S. at 267).

Instead, she alleges that “[a]t all times,” Defendants exercised control over The Mast’s content. (Compl. ¶

21.) Second, even if she were correct that The Mast should be considered a “limited public forum,” her

claim still could not withstand Defendants’ motion because, as discussed above, she has not plausibly

alleged that Defendants engaged in viewpoint discrimination. See Ochshorn, 645 F.3d at 540 (“In a limited

public forum, the government may restrict speech in a way that is viewpoint-neutral and reasonable in light

of the forum’s established purpose.” (citing Peck, 426 F.3d at 626)). Third, and finally, her assertion that

“[t]he Hazelwood standard is inapplicable where a school-sponsored publication is a limited public forum,”

(Pl.’s Opp’n at 9), relies on out-of-Circuit authority and ignores binding Second Circuit caselaw that

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that Defendants violated R.R.’s First Amendment rights by refusing to publish her poem. This

claim is dismissed.3

C. Fourteenth Amendment Equal Protection Claim

Plaintiff also claims that Defendants racially discriminated against R.R. in violation of the

Fourteenth Amendment’s Equal Protection Clause. (Compl. ¶¶ 65–75.) This claim suffers from

numerous flaws that independently require dismissal.

As an initial matter, Defendants contend that Plaintiff’s equal protection claim fails because

she has not plausibly alleged a First Amendment violation. (Defs.’ Mem. at 11.) This is because

“[w]here . . . an equal protection claim is based on an alleged First Amendment violation, the

former ‘coalesces with the latter.’” Odermatt v. Way, 188 F. Supp. 3d 198, 215–16 (E.D.N.Y.

2016) (quoting Tomlins v. Vill. of Wappinger Falls Zoning Bd. of Appeals, 812 F. Supp. 2d 357,

372 (S.D.N.Y. 2011)), aff’d, 694 F. App’x 842 (2d Cir. 2017). As a result, “‘where the First

Amendment claim has failed, the equal protection claim fails, too.’” Id. at 216 (quoting Gentile

v. Nulty, 769 F. Supp. 2d 573, 582–83 (S.D.N.Y. 2011)). Plaintiff offers no substantive response

to Defendants’ arugment. In fact, she appears to concede the point by asserting that because her

squarely forecloses this argument. See id. at 540–42 (affirming district court finding that school newspaper

was limited public forum and applying Hazelwood standard to plaintiffs’ claim).

3 Plaintiff also asserts a free speech claim under the Fourteenth Amendment. (Compl. ¶¶ 52–64.)

Defendants argue that this claim should be dismissed as duplicative of her First Amendment claim. (Defs.’

Mem. at 8 n.3.) Plaintiff does not respond to Defendants’ argument in her opposition brief, so the Court

deems this claim abandoned. See Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014) (“[I]n the case of

a counseled party, a court may, when appropriate, infer from a party’s partial opposition that relevant claims

or defenses that are not defended have been abandoned.”); see also Rohn Padmore, Inc. v. LC Play Inc.,

679 F. Supp. 2d 454, 459 (S.D.N.Y. 2010) (“Where one party fails to respond to an opposing party’s

argument that its claim must be dismissed, courts may exercise their discretion and deem the claim

abandoned.” (citation and quotation marks omitted)). In any event, for the reasons described below, any

such claim would “coalesce” with her First Amendment claim—and fall alongside it.

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(Pl.’s Opp’n at 11.)

Here, Plaintiff’s allegations reveal that her equal protection claim is simply a First

Amendment claim in disguise. In support of this claim, she alleges that Defendants refused to

publish R.R.’s poem to prevent R.R. from expressing her viewpoint, i.e., “from advocating for the

advancement of African-American citizens of the United States and specifically for George Floyd

and those affected by his death,” and that as a result, “R.R. was deprived of the equal education

afforded to other students because of the intimidation and ostracism she experienced from other

students and faculty within the school.” (Compl. ¶¶ 69–70.) The other allegations that Plaintiff

cites in support of this claim, (Pl.’s Opp’n at 11), fare no better. For example, she alleges that R.R.

“identified with and promoted the cause of African American minorities,” that “Defendants

regarded R.R. as an advocate of African American students and as African-American because R.R.

promoted the cause of African American minorities,” and that “Defendants prevented and forbade

the publication of R.R.’s sonnet in order to suppress R.R.’s freedom of speech . . . especially insofar

as R.R. attempted to exercise her freedom of speech . . . on behalf of African American minorities.”

(Compl. ¶¶ 40, 42, 44.) Together, these allegations make clear that her “equal protection claim is

essentially premised on allegations of viewpoint discrimination.” Odermatt, 188 F. Supp. 3d at

216; see also Afr. Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 363 (2d Cir. 2002)

(explaining that plaintiffs’ equal protection and First Amendment claims “coalesce[d]” where

plaintiffs alleged, among other things, that “[t]he defendant has deprived the plaintiffs of equal

protection of the laws to punish them for exercising rights protected by the First Amendment”).

Because Plaintiff has failed to plausibly allege a First Amendment violation, her equal protection

claim necessarily fails as well.

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Defendants contend that it still must be dismissed because she has not plausibly alleged that R.R.

is a member of a protected class. (Defs.’ Mem. at 11–14; Defs.’ Reply at 10–11.)4 To state a

claim under the Equal Protection Clause, Plaintiff “must demonstrate that [R.R.] was treated

differently than others similarly situated as a result of intentional or purposeful discrimination.’”

Keles v. Davalos, No. 19-CV-3325, 2022 WL 17495048, at *12 (E.D.N.Y. Nov. 23, 2022)

(quoting Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005)). In general, this requires a plaintiff

to “allege that a government actor intentionally discriminated against them on the basis of” a

protected characteristic, such as race. Hayden v. Cty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999).

Here, Plaintiff’s equal protection claim is premised on her allegation that Defendants

refused to publish R.R.’s poem for racially discriminatory reasons. Plaintiff asserts that she has

adequately alleged that R.R. “is a member of a protected class—African-Americans and those who

advocate for that class and for those who are regarded by Defendants as African-Americans or

advocates of African-Americans.” (Pl.’s Opp’n at 11 (citing Compl. ¶¶ 40–42, 44, 94, 103).)

However, Plaintiff’s argument fails under closer scrutiny. Plaintiff nowhere alleges that R.R. is

African American. And her allegation that “Defendants regarded R.R. . . . as African-American,”

(Compl. ¶ 42), is entirely conclusory and therefore the Court need not accept it as true.5

4 Defendants contend that “[t]here is an insurmountable roadblock to plaintiff’s equal protection

claims: R.R. is white.” (Defs.’ Mem. at 14 (emphasis in original).) Plaintiff disputes Defendants’ assertion

and notes that she “has not asserted in her complaint . . . that [R.R.] is a ‘white’ person.” (Pl.’s Opp’n at

13.) Because the complaint does not allege that “R.R. is white,” the Court has not considered this argument

in resolving Defendants’ motion.

5 In support of her “regarded as” theory, Plaintiff cites Albunio v. City of New York, 889 N.Y.S.2d 4

(1st Dep’t 2009), aff’d, 16 N.Y.3d 472 (2011), which she characterizes as a decision “uph[olding] a jury

award in a discrimination case in which [the plaintiff] was discriminated against because [the plaintiff]

advocated for a racial minority.” (Pl.’s Opp’n at 12.) But Albunio is inapposite for several reasons. Most

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protected class of individuals who “advocate[] for African-Americans.” (Pl.’s Opp’n at 11.) For

this proposition, she cites Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), and its progeny.

(Id.) Even assuming that these cases apply outside the Title VII employment context, which

Defendants dispute, (Defs.’ Reply at 11), they do not support Plaintiff’s “advocacy” theory of

discrimination. In Holcomb, the Second Circuit recognized the viability of an associational

discrimination claim where “[an] employee suffers discrimination because of the employee’s own

race.” 521 F.3d at 139 (emphasis in original); see also Fukelman v. Delta Air Lines, Inc., No. 18-

CV-2, 2020 WL 4587496, at *14 (E.D.N.Y. Apr. 13, 2020) (“A plaintiff may plead a claim of

discrimination based on association with someone in a protected class, even if the plaintiff is not

a member of a protected class, if the discrimination suffered is due to the plaintiff’s own race.”

(emphasis added)), report and recommendation adopted, 2020 WL 2781662 (E.D.N.Y. May 29,

2020). Here, by contrast, Plaintiff’s claim is premised not on R.R.’s own race, but on “the race of

the persons on whose behalf the advocacy is occurring.” Frith v. Whole Foods Mkt., Inc., 38 F.4th

263, 272 (1st Cir. 2022) (rejecting “advocacy” theory of discrimination advanced under Title VII).

Plaintiff has provided no persuasive authority for such a sweeping theory, and the Court has found

none.6

importantly, the Albunio plaintiffs did not assert a “regarded as” theory of discrimination under federal

law—they brought associational retaliation claims under the New York City Human Rights Law.

6 Plaintiff cites Morales v. NYS Dep’t of Lab., 865 F. Supp. 2d 220 (N.D.N.Y. 2012), aff’d on other

grounds, 530 F. App’x 13 (2d Cir. 2013), for the proposition that “evidence of [a plaintiff’s] advocacy is

sufficient to establish her association with a protected race or national origin for purposes of her prima facie

case” under Title VII. 865 F. Supp. 2d at 242. However, the Court respectfully disagrees with the reasoning

of Morales, including its reading of Holcomb, and therefore finds it unpersuasive. In any event, even if the

Court were to accept Plaintiff’s “advocacy” theory or construe the complaint as raising an associational

discrimination claim, it would still fail because, as discussed in greater detail below, Plaintiff has not

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prototypical equal protection claim involves discrimination against people based on their

membership in a vulnerable class, . . . the equal protection guarantee also extends to individuals

who allege no specific class membership but are nonetheless subjected to invidious discrimination

at the hands of government officials.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499

(2d Cir. 2001) (citing LeClair v. Saunders, 627 F.2d 606 (2d Cir. 1980) and Village of

Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam)). Where, as here, a plaintiff does not

claim membership in a constitutionally protected class, she may assert an equal protection claim

“on both a selective enforcement and a class-of-one theory.” Lepper v. Vill. of Babylon, No. 18-

CV-7011, 2022 WL 939719, at *18 (E.D.N.Y. Mar. 29, 2022) (citation and quotation marks

omitted), aff’d, No. 22-1064, 2023 WL 4004220 (2d Cir. June 15, 2023) (summary order). These

theories “offer distinct pathways for proving a non-class-based Equal Protection violation.” Hu v.

City of New York, 927 F.3d 81, 93 (2d Cir. 2019).

To state a claim based on selective enforcement, a plaintiff must plausibly allege that “‘(1)

the person, compared with others similarly situated, was selectively treated, and (2) the selective

treatment was motivated by an intention to discriminate on the basis of impermissible

considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or

by a malicious or bad faith intent to injure the person.’” Hu, 927 F.3d at 91 (quoting Zahra v.

Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995)). Thus, “[a]s this test makes clear, . . . [a

selective enforcement] ‘type of equal protection claim requires proof of disparate treatment and

plausibly alleged any facts regarding similarly situated comparators. See Fukelman, 2020 WL 4587496, at

*15 (recognizing availability of associational discrimination theory but dismissing plaintiffs’ claims

because they “d[id] not allege facts regarding any similarly situated comparators who did not associate with

Jewish, Israeli and Hebrew-speaking friends or co-workers, and who were punished less severely for the

same alleged conduct”).

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Based on the “broad definition of ‘impermissible considerations,’” selective enforcement claims

“protect[] against both discrimination on the basis of a plaintiff’s protected status (e.g., race or a

constitutionally-protected activity) and discrimination on the basis of a defendant’s personal

malice or ill will towards a plaintiff.” Id. On the other hand, to proceed on a class-of-one theory,

a plaintiff must plausibly allege “‘[1] that she has been intentionally treated differently from others

similarly situated and [2] that there is no rational basis for the difference in treatment.’” Id.

(quoting Olech, 528 U.S. at 564). As the Supreme Court explained in Olech, a class-of-one claim

finds its basis in the Equal Protection Clause’s “purpose . . . to secure every person within the

State’s jurisdiction against intentional and arbitrary discrimination.” 528 U.S. at 564.

It is worth highlighting that “[w]hile both types of Equal Protection claims require a

showing that the plaintiff was treated differently from another similarly situated comparator, they

differ in at least two key respects.” Hu, 927 F.3d at 93. First, a class-of-one claim, unlike a

selective enforcement claim, “does not require proof of a defendant’s subjective ill will towards a

plaintiff[.]” Id. “Instead, a plaintiff can prevail on [a class-of-one] claim on the basis of similarity

alone.” Id. Second, whereas a class-of-one claim “requires an ‘extremely high’ degree of

similarity between a plaintiff and comparator,” a selective enforcement claim “merely requires a

‘reasonably close resemblance’ between a plaintiff’s and comparator’s circumstances.” Id. A

class-of-one plaintiff “must establish that it is ‘prima facie identical’” to a comparator by showing

that:

(i) no rational person could regard the circumstances of the plaintiff to differ from

those of a comparator to a degree that would justify the differential treatment on

the basis of a legitimate government policy; and (ii) the similarity in circumstances

and difference in treatment are sufficient to exclude the possibility that the

defendants acted on the basis of a mistake.

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Court turns to the parties’ arguments.

Defendants argue that Plaintiff has failed to state a selective enforcement claim because

the complaint “identifies no comparator, much less a legally proper one.” (Defs.’ Mem. at 14.)

Plaintiff nowhere responds to this argument in her opposition—she addresses her class-of-one

theory only. (Pl.’s Opp’n at 12.) Because Plaintiff neither explicitly alleges a selective

enforcement claim in the complaint nor responds to Defendants’ arguments in favor of dismissal,

the Court concludes that Plaintiff has abandoned any selective enforcement claim. See Jackson,

766 F.3d at 198; see also Rohn Padmore, Inc., 679 F. Supp. 2d at 459.

Nevertheless, Plaintiff contends that her equal protection claim should proceed on a class-

of-one theory because she has alleged that R.R. “was adversely treated differently than other

student writers for The Mast, for impermissible racial reasons and that Defendants intended to

inhibit her free speech for impermissible social reasons.” (Pl.’s Opp’n at 12 (citing Compl. ¶¶ 15,

19, 57, 59).)7 But the allegations that she cites in the complaint merely establish that other students

submitted materials to The Mast, and that some of those materials, including poems, were

ultimately published in The Mast. These allegations fall far short of plausibly demonstrating that

R.R. was “prima facie identical” to a similarly situated comparator, as required to sustain a class-

of-one claim. Lepper, 2023 WL 4004220, at *2 (citation and quotation marks omitted).

For these reasons, Plaintiff’s Fourteenth Amendment equal protection claim is dismissed.8

7 The remainder of Plaintiff’s argument in support of her class-of-one claim appears to rely on

extrinsic materials that the Court has excluded, such as R.R.’s affidavit. (Pl.’s Opp’n at 12.) For the

avoidance of doubt, the Court notes that it has not considered these materials.

8 Because Plaintiff has not plausibly alleged an underlying constitutional violation, any Monell claim

against the school district necessarily fails. See Lepper, 2022 WL 939719, at *30 (“Plaintiffs’ Monell claims

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Plaintiff also raises the following claims under New York law: (i) race discrimination in

violation of N.Y. Const. art. I, § 11; (ii) violation of R.R.’s right to freedom of speech under N.Y.

Const. art. I, § 8; and (iii) violation of the New York State Human Rights Law, N.Y. Exec. Law

§§ 291, 296(4).

Federal courts “have supplemental jurisdiction over all other claims that are so related to

claims in the action within such original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However,

a court “may decline to exercise supplemental jurisdiction over a claim” if it “has dismissed all

claims over which it has original jurisdiction.” Id. § 1367(c)(3). The Supreme Court has explained

that “in the usual case in which all federal-law claims are eliminated before trial, the balance of

factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience,

fairness, and comity—will point toward declining to exercise jurisdiction over the remaining state-

law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

Here, given that no federal claims remain and diversity jurisdiction does not exist, the

interests of judicial economy, convenience, fairness, and comity weigh in favor of not exercising

supplemental jurisdiction over Plaintiff’s state law claims. Accordingly, the Court declines to

exercise supplemental jurisdiction over these claims and will dismiss them without prejudice.

fail because, . . . Plaintiffs have not established any underlying constitutional violations.”). And in the

absence of a constitutional violation, the Court need not address Defendants’ additional arguments that (i)

the complaint fails to plead personal involvement of Haruthunian, Schmettan, and Sefick; (ii) the individual

defendants are entitled to qualified immunity; (iii) the official capacity claims are duplicative; and (iv)

Plaintiff is not entitled to punitive damages. (Defs.’ Mem. at 21, 24.) Finally, the Court notes Plaintiff’s

concession that her fourth cause of action for attorney’s fees pursuant to 42 U.S.C. § 1988, (Compl. ¶¶ 76–

78), is “no[t] [a] separate cause of action,” (Pl.’s Opp’n at 22), and therefore it is dismissed.

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Because Defendants’ motion to dismiss is granted, Plaintiff’s motion for partial summary

judgment on her federal law claims is denied as moot. Additionally, even if the motion were not

moot, it would be denied on procedural grounds.

Local Civil Rule 56.1 “sets forth specific requirements about how the facts relied upon by

the moving party and disputed by the opposing party are to be presented.” Anora v. Oasis Pro.

Mgmt. Grp., Ltd., No. 19-CV-11732, 2023 WL 2307180, at *2 (S.D.N.Y. Mar. 1, 2023). Rule

56.1 requires that a party moving for summary judgment “annex[] to the notice of motion a

separate, short and concise statement, in numbered paragraphs, of the material facts as to which

the moving party contends there is no genuine issue to be tried.” Loc. Civ. R. 56.1(a). A movant

who fails to submit a Rule 56.1 statement proceeds at her own peril, as “[f]ailure to submit such a

statement may constitute grounds for denial of the motion.” Id.; see also T.Y. v. New York City

Dep’t of Educ., 584 F.3d 412, 417 (2d Cir. 2009) (“The requirement is strict; failure to submit a

Rule 56.1 statement with a motion for summary judgment may result in the motion’s denial.”).

Here, Plaintiff inexplicably failed to submit a Rule 56.1 statement along with her motion

for summary judgment. Only after Defendants highlighted Plaintiff’s omission, (see Defs.’ Opp’n

at 13–14, ECF No. 33), did Plaintiff file her Rule 56.1 statement—more than two months after she

served her opening brief. Plaintiff offers no explanation for her failure to comply with the Court’s

basic procedural rules. Instead, she merely urges the Court to exercise its discretion to overlook

her untimely filing. (Pl.’s Reply at 6, ECF No. 36.) The Court will not do so here, especially

given that she has not even attempted to establish excusable neglect for her late filing. See also

Fed. R. Civ. P. 6(b)(1)(B) (“[T]he court may, for good cause, extend the time . . . on motion made

after the time has expired if the party failed to act because of excusable neglect.”). Accordingly,

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See Anora, 2023 WL 2307180, at *3 (denying motion for summary judgment based on movant’s

failure to timely submit Rule 56.1 statement).

IV. CONCLUSION

For the reasons stated above, Defendants’ motion to dismiss pursuant to Rule 12(b)(6) is

GRANTED and the complaint is DISMISSED. Plaintiff’s federal claims (Counts 1–4) are

dismissed with prejudice. The Court declines to exercise supplemental jurisdiction over her state

law claims (Counts 5–8) and dismisses them without prejudice.

Plaintiff’s motion for partial summary judgment under Rule 56(a) is DENIED as moot.

The Clerk of Court is respectfully directed to enter judgment accordingly and close this

case.

SO ORDERED.

Dated: September 18, 2023

Central Islip, New York

/s/ JMA

JOAN M. AZRACK

UNITED STATES DISTRICT JUDGE

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