Montesa v. Schwartz, No. 14-3721 (2d Cir. 2016)

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Justia Opinion Summary

Plaintiffs, students who are currently enrolled in the District's public school system, filed suit alleging that a majority of the School Board are of the Orthodox/Hasidic Jewish faith or are sympathetic to the interests of the Orthodox/Hasidic Jewish community. Plaintiffs claim that the Board Defendants have promoted the Hasidic Jewish faith in violation of the First Amendment. Plaintiffs argue that defendants' unconstitutional actions contributed to the defunding of the public school system, which in turn injured plaintiffs by depriving them of educational opportunities and by damaging their psychological and mental well‐being.The court held that plaintiffs lack standing to assert an Establishment Clause claim against defendants because they are only indirectly affected by the conduct alleged to violate the Establishment Clause. Therefore, it is unnecessary to decide whether defendants are entitled to absolute or qualified immunity.

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14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2015 (Argued: November 2, 2015 Decided: September 12, 2016) Docket Nos. 14 3721 cv, 14 3771 cv, 14 3811 cv ________________________________________________________________________ REBECCA MONTESA, individually and as a parent and natural guardian of C.W., E.W. and N.W., infants, MARIE JEAN BAPTISTE, individually and as a parent and natural guardian of PJB, DJB, and DJB, infants, ISRAEL MEDIUA, individually and as a parent and natural guardian of H.M., infant, MARC E. DORSANVIL, individually and as a parent an natural guardian of M.D. and N.D., infants, MARTINE NARCISSE, RONALD ROSEMOND, individually and as a parent and natural guardian A.L., infant, MARLENE ISRAEL, individually and as a parent and natural guardian of B.I. 1 and B.I. 2, infants, KERLINE LOUIS, individually and as a parent and natural guardian of KL and RL, infants, YOLENE HIPPOLYTE, individually and as a parent and natural guardian of I.H. 1, I.H. 3 and R.H., infants, MARIE SOMISE LOUIS, individually and as a parent and natural guardian of S.L., infant, KRYSTAL WILSON, individually and as a parent and natural guardian of E.W. and M.E., infants, PAUL ROONEY, individually and as a parent and natural guardian of DR, and JR, infants, NASIK ELAHI, individually and as a parent and natural guardian of K.E. and S.E., infants, DONIQUE JOHNSON, individually and as a parent and natural guardian of D.J., infant, BETTY CARMAND, individually and as a parent and natural guardian of D.E, J.E., and S.E., infants, ROSENAY JACQUES, individually and as parents and natural guardians of J.J., C.J., and A.L., infants, ELZA JACQUES, individually and as parents and natural guardians of J.J., C.J., and A.L., infants, LANA RHEUBOTTOM, individually and as a parent and natural guardian of J.R,, infant, HIRAM RIVERA, individually and as a parent and natural guardian of A.R. and T.R., infants, STEVEN WHITE, individually, collectively and as parents and natural guardians of A.W., infant, EMILIA WHITE, individually, collectively and as parents and natural guardians of A.W., infant, RAMONA JONES, individually and as a parent and natural guardian of Y.J., E.J., G.J., and T.J., infants, WILMA GLOVER KOOMSON, i 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 individually and as a parent and natural guardian of F.K., infant, YOLANDA WHITE, CHRISTOPHER MESIBOV, individually and as parents and natural guardians of J.M. 1, and J.M. 2, infants, DONNA MESIBOV, individually and as parents and natural guardians of J.M. 1, and J.M. 2, infants, ALFRED COLE, individually and as a taxpayer residing within the East Ramapo Central School District, ROBERT MALEBRANCHE, individually and as a taxpayer residing within the East Ramapo Central School District, LORRAINE ALCIMAS, individually and as a taxpayer residing within the East Ramapo Central School District, IREUS REGINAL, individually and as a taxpayer residing within the East Ramapo Central School District, EMMANUEL ALEXIS, individually and as a taxpayer residing within the East Ramapo Central School District, OVID COLAS, individually and as a taxpayer residing within the East Ramapo Central School District, KIM FOSKEW, LENTZ EUGENE, individually and as a taxpayer residing within the East Ramapo Central School District, LENARD SAINVIL, individually and as a parent and natural guardian of C.B. and W.B., infants, FRANKY SANVIL, individually and as a taxpayer residing within the East Ramapo Central School District, ADOLFINA MARTINEZ, individually and as a parent and natural guardian of C.M. and E.M., infants, MONESE THEODORE, individually and as a parent and natural guardian of R.T., infant, LANA AUGUSTE, individually and as a parent and natural guardian of SA, infant, LILANA WILSON ORTA, individually and as parents and natural guardians of SW, and AO, infants, ANTHONY ORTA, individually and as parents and natural guardians of SW, and AO, infants, KIMBERLY COLLICA FOX, individually and as a parent and natural guardian of A.C. and R.C., infants, MALLORY JOHNSON, individually and as a parent and natural guardian of A.L., infant, BEVERLY JONES, individually and as a parent and natural guardian of T.S., infant, KENICE HIBBERT, individually and as a parent and natural guardian of E.P., infant, LITIA HAGANS, individually and as a parent and natural guardian of D.C. and D.S., infants, BEVERLY PATTERSON WATSON, individually and as a parent and natural guardian of J.W., infant, FLAMBERT TELUSCA, individually, collectively and as parents and natural guardians of F.T. and S.T., infants, ENELLE PIERRE, individually and as a parent and natural guardian of C.P., J.P. and K.P., infants, ANNE CARMAND LUNDI, individually and as a parent and natural guardian of A.S. and PL., infants, LEVY CAZEAU, individually and as a parent and natural guardian of T.C., infant, MARIE JOSY JEAN BAPTISTE, individually and as a parent and natural guardian of HJB, JJB, and JJB, infants, ANNIE CRUDOP, individually and as a taxpayer residing within ii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 the East Ramapo Central School District, JULIA THOMPSON, individually and as a taxpayer residing within the East Ramapo Central School District, KENNETH ISAACS, individually and as a taxpayer residing within the East Ramapo Central School District, Peter Sharpe, individually and as a taxpayer residing within the East Ramapo Central School District, FRANTZIE LAMARRE CHAM, individually and as a parent and natural guardian of MC, MC, and MC, infants, DORIAN BUTCHER, individually and as a parent and natural guardian of S.B., infant, MARGARET TUCK, individually and as a parent and natural guardian of J.A., infant, REGINALDA BRUNO, individually and as a parent and natural guardian of S.A., infant, RETTVIE JOURDAIN, individually and as a parent and natural guardian of P.D., infant, MARIA FLORES MARTINEZ, individually and as a parent and natural guardian of A.M., infant, PEARLINE WRAY, individually and as a parent and natural guardian of R.M., infant, SHARON PARKER, individually and as a parent and natural guardian of A.P., infant, BOILEAU MEHU, individually, collectively and as a parents and natural guardians of C.M., F.M. and K.M., infants, MARTHO FERDINAND, individually and as parents and natural guardians of WL and BL, infants, JEAN BERNADIN LAGUERRE, individually and as parents and natural guardians of WL and BL, infants, LAMARTINE LARAME, individually and as a parent and guardian of L.L. 1 and L.L. 2, infants, ETHENE LARAME, individually and as a parent and natural guardian of I.L., J.L. and R.L., infants, PATRICK JEANBAPTISTE, individually and as a parent and guardian of PJ JR., DJ and DPJ, infants, MARIE MATHELUS, individually and as a parent and natural guardian of A.M., infant, MARIE AURELUS, individually and as a parent and guardian of C.A. and J.A., infants, JEAN RENE VICSAMA, individually and as a parent and natural guardian of F.V. and R.V., infants, LUCIENNE SAINT FORT, individually and as a legal guardian of D.P., H.R. and M.P., infants, VELLA MARDY ARRE, individually and as a parent and natural guardian of R.M., infant, RONY JACQUES, individually and as a parent and natural guardian of M.J., T.J. and T.R.J., infants, LISA ROSS, individually and as a parent and natural guardian of DR, infant, LISA MEYERS, individually and as a parent and natural guardian of S.M., infant, GEORGES DELALEU, individually and as a parent and natural guradian of D.C., infant, BENITA GILES, individually and as a parent and a natural guardian of B.G., infant, PATRICIA COLLINS, individually and as a parent and natural guardian of J.C. and J.M., infants, DEMERUANT C. LOUISTHELMY, individually and as a parent and natural guardian of D.L., M.L., and R.L., infants, SERGO BEAUBOEUF, individually and as a parent and natural guardian of M.M., iii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 infant, JUNIE CLAUTAIRE, individually and as a parent and natural guardian of C.C., J.J. and T.C., infants, ADELE FORTUNE, individually, collectively and as parents and natural guardians of T.F., infants, JOCELIN NOEL, individually and as a parent and natural guardian of E.N. and J.N., infants, ROLAND ALEXANDRE, individually, collectively and as a parent and natural guardian of D.A., E.A. and Z.A., infants, PRESLER LOUIS JUSTE, individually and as a parent and natural guardian of ELJ, and PLJ, infants, ANNA NARCISSE, individually and as a legal guardian of JF and AM, infants, HARVEY WILLIAMS, individually and as a legal guardian of M.A. and M.J., infants, JESULA AUGUSTE, individually and as a taxpayer residing within the East Ramapo Central School District, PIERRE DESROSIERS, individually and as a parent and natural guardian of C.D., infant, JULIETTE JEAN KERNOSAINT, individually, GEROLD ST. BRICE, individually, MICHELLE LARAME, individually and as a taxpayer residing within the East Ramapo Central School District, JERISON LORA, individually and as a taxpayer residing within the East Ramapo Central School District, MAGDA DESDUNES, individually and as a parent and natural guardian of O.D., infant, PATRICIA JOURDAIN, individually and as a taxpayer residing within the East Ramapo Central School District, DESHAWN PARKER, individually and as a taxpayer residing within the East Ramapo Central School District, RUSSELL BISHOP, individually and as a taxpayer residing within the East Ramapo Central School District, OSWALD DUBOIS, individually, COLIN GRANT, individually and as a taxpayer residing within the East Ramapo Central School District, KENNETH BOLT, individually and as a taxpayer residing within the East Ramapo Central School District, CHRIS BIBBINS, individually and as a taxpayer residing within the East Ramapo Central School District, JOANNE CHERIMOND, individually and as a taxpayer residing within the East Ramapo Central School District, MELVERLEEN BULLOCK, individually and as a parent and natural guardian of C.B., infant, CLEAVON BULLOCK, individually, ROBERT JAMES, individually and as a taxpayer residing within the East Ramapo Central School District, EDENS ZULME, individually and as a taxpayer residing within the East Ramapo Central School District, REBECCA ADJETEY, individually and as a taxpayer residing within the East Ramapo Central School District, RAYSHON RETTWAY, individually, MAGDA PIERRE LOUIS, individually and as a taxpayer residing within the East Ramapo Central School District, TATIANA PIERRE LOUIS, individually and as a taxpayer residing within the East Ramapo Central School District, MARIEE COMEAU, individually and as a taxpayer residing within the East Ramapo Central School iv 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 District, AKA MARLEE COMEAU, GERALD CHEREMEANT, individually and as a taxpayer residing within the East Ramapo Central School District, ARTHUR MONDESTIN, individually and as a taxpayer residing within the East Ramapo Central School District, RAYSHON PETTWAY, individually and as a taxpayer residing within the East Ramapo Central School District, SYBIL BEACH EDWARDS, individually and as a parent and natural guardian of A.E., infant, ANTONIO MIGUEL, individually and as a parent and natural guardian of A.M., infant, JUDITH DESIR, individually and as a parent and natural guardian of J.S, infant, ENLUS VIERGELINE, VIERGELINE ENLUS individually and as a parent and natural guardian of GJ, MJ, infants, NAJA WILSON, individually and as a parent and natural guardian of ET, ET and ET, infants, DYNAA LATURE, individually and as a parent and natural guardian of D.D., infant, MINNIE WILSON, individually and as a parent and natural guardian of I.W., infant, FAMILLA EPPS, individually and as a parent and natural guardian of J.E., infant, PRUDENCE WRAY, individually and as a parent and natural guardian of NR and GM, infants, DONNA GARCES, individually and as a parent and natural guardian of S.G., infant, INGRID RENER, individually and as a parent and natural guardian of BE, and AE, and LE, infants, ODNY EUGENE, individually and as a parent and natural guardian of J.E., infant, JEAN R. MARSEILLE, individually, JADIA DORCELLY, individually, BADIO DOSSELAINE, individually, ROBERT BADIO, individually and as a taxpayer residing within the East Ramapo Central School District, PIERRE LOUIS CYNILLE, individually, MURIELLE GUERIN, individually and as a parent and natural guardian of M.G., infant, FERDILUS DIEUDONNE, individually and as a parent and natural guardian of JF, CF, and AF infants, ALINE TELUSCA, individually, collectively and as parents and natural guardians of, F.T. and S.T., infants, PAUL LARAME, individually and as a parent and natural guardian of, V.L., infant, VALQUISE LOUIS JACQUES, individually and as a parent and natural guardian of A.L., infant, MARIE ROSE MICHEL, individually and as a parent and natural guardian Y.M., infant, NADEGE DORCELLY, individually and as a taxpayer residing within the East Ramapo Central School District, SERGO PIERRE, individually and as a parent and natural guardian of A.P., infant, CADET SAUVAL, individually and as a parent and natural guardian of A.S., infant, TONY MARSEILLE, individually and as a parent and natural guardian of E.M., infant, MARIE LOUIS, individually, collectively and as parents and natural guardians of S.L., infant;, JUDSON LOUIS, individually, collectively and as parents and natural guardians of S.L., infant;, YOLENE BONNY, individually and as a parent and v 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 natural guardian of APJ and PJ, infants, JULIA DERIVAL, individually and as a parent and natural guardian of S.D., infant, LINDA R. GILBERT, individually and as a parent and natural guardian of WG, DG, and JG, infants, DIEVLINE ST. GERMAIN, individually and as a taxpayer residing within the East Ramapo Central School District, MATHIE DIEJUSTE, individually, CLAUDE DORCELLY, individually and as a taxpayer residing within the East Ramapo Central School District, MARIE LAFONTANT, individually and as a parent and natural guardian of S.D., infant, LAGUERRE CICERON, individually, MARIE ROSE EXHAUTES, individually and as a taxpayer residing within the East Ramapo Central School District, DAPHKAR FLEURIS, individually and as a taxpayer residing within the East Ramapo Central School District, Peggy Floyd, individually and as a parent and natural guardian of S.F., infant, LOUIS WHARTON, individually and as a graduate of the East Ramapo Central School District, COURTNEY JOYCE, individually, BLANDINE LAROQUE, individually and as a parent and natural guardian of S.M., infant, JOSEPH CHARLES CLERVEAUX, individually and as a parent and natural guardian of C.C., infant, JEAN JEAN CHARLES, individually and as a parent and natural guardian of D.C., infant, MARIE NICOLE DESCAS, individually, collectively and as parents and natural guardians of N.D. and S.D.., infants, EUGENIE EUGENE, individually and as a parent and natural guardian of A.R. 1 and A.R. 2, infants, CARMELLE MEHU, individually, collectively and as a parents and natural guardians of C.M., F.M. and K.M., infants, U. JOSIE ALEXANDRE, individually and as a parent and natural guardian of ZA, DA and EA, infants, SHELOMITHE JEAN, individually and as a current student age 18 or older in the East Ramapo Central School District, PATRICIA DESROCHES, individually and as a graduate of the East Ramapo Central School District, DARLENE LAUTURE, individually and as a parent and natural guardian of BL and AL, infant, RUTH ARCHANGE, individually and as a parent and natural guardian of J.L. and R.L.1 and R.L.2, infants, EMMANUEL AUGUSTIN, individually and as a parent and natural guardian of E.A., K.A., M.A., and S.A., infants, BERTHANE ANTOINE, individually and as a taxpayer residing within the East Ramapo Central School District, MARILIA MONTILUS, individually and as a parent and natural guardian of S.M., infant, MARK GRIFFITH, JR., individually, MEGHAN C. FITZGERALD, individually and as a parent and natural guardian of S.C., infant, JUDY KARIUS, individually and as parents and natural guardians of F.K.; infant, MATT KARIUS, individually and as parents and natural guardians of F.K.; infant, ADOLPHE LUBIN, individually and as a graduate of the East Ramapo Central vi 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 School District, AGLA PIERRE, individually, collectively and as parents and natural guardians of G.P. infant, GESNER PIERRE, individually, collectively and as parents and natural guardians of G.P. infant, ALEXANDRA JOACHIM, individually and as a parent and natural guardian of S.J. infant, ALEXANDRA VOLCY, individually and as a parent and natural guardian of S.P. infant, ALLISSIA BASQUIAT, individually and as a graduate of the East Ramapo Central School District, AMANDA BLAND, individually and as a parent and natural guardian of A.R. 1 and A.R. 2, infants, AMIONNE CHARLES, individually and as a taxpayer residing within the East Ramapo Central School District, ANDREA NIEDELMAN, individually and as a parent and natural guardian of A.N. and T.N., infants, ANGELA JORDAN, individually and as a parent and natural guardian of R.P., infant, ANISE MACK, individually and as current student age 18 or older of the East Ramapo Central School District, ANISHA CARRASQUILLO, individually and as a parent and natural guardian of A.M. infant, ANITA CUNNINGHAM, individually and as a taxpayer residing within the East Ramapo Central School District, ANNAJEAN FRANCOIS, individually and as a taxpayer residing within the East Ramapo Central School District, ANNE DIEUJUSTE, individually and as a taxpayer residing within the East Ramapo Central School District, ANNEBETHE GUILLAME FISH, individually and as a parent and natural guardian of S.P., infant, ANNIE F. WILSON, individually and as a parent and natural guardian of S.W., infant, ANNIE THOMSPON, individually and as a taxpayer residing within the East Ramapo Central School District, ANSELME HUGUETTE, individually and as a parent and natural guardian of A.B. and E.B., infants, ANTHONY GOULD, individually and as a parent and natural guardian of A.N. and T.N., infants, ANTONIO ETIENNE, individually and as a parent and natural guardian of B.E. and C.E., infants, ARKITE FELIX, individually and as a taxpayer residing within the East Ramapo Central School District, ASSETNE BERNARD, individually and as a taxpayer residing within the East Ramapo Central School District, BARBARA TURNER, individually and as a parent and natural guardian of L.E., infant, BETHANI JONES, individually and as a parent and natural guardian of J.J.1, J.J.2 and J.L., infants, BEVERLY PAIGE, individually and as a parent and natural guardian of D.C., infant, BILL MACK, individually and as a parent and natural guardian of A.M. and J.M., infants, BONNY YOLENE, individually and as a parent and natural guardian of A.J. and P.J., infants, BRENNAH HARRISON, individually and as a parent and natural guardian of N.S., infant, CARIDA PETIT NAN, individually and as a parent and natural guardian of J.P. and S.P., infants, CARL vii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 JENKINS, individually and as a parent and natural guardian of T.J., infant, CARLA JOHNSON, individually and as a parent and natural guardian of L.R., infant, CARLO JOSEPH, individually and as a parent and natural guardian of C.J., J.J., and R.J., infants, CARMEL FEDE, individually and as a taxpayer residing within the East Ramapo Central School District, CARMELLE JUSTINE MOREAU, individually and as a taxpayer residing within the East Ramapo Central School District, CAROL SEC, individually and as a taxpayer residing within the East Ramapo Central School District, CASEY CICERON, individually and as a taxpayer residing within the East Ramapo Central School District, CATHERINE TELLEZ, individually and as a parent and natural guardian of J.L., infant, CERIL CAYO, individually and as a parent and natural guardian of B.C., D.C. and R.C., infants, CHANTAL JEAN, individually and as a parent and natural guardian of S.B., infant, CHARLES LOUVIERE, individually and as a parent and natural guardian of J.L., infant, CHERI PARIS HUDSON, individually, collectively and as parents and natural guardian of C.H. infant, JOHN HUDSON, individually, collectively and as parents and natural guardian of C.H. infant, CHRISTINA DUNCAN, individually, collectively and as parent and natural guardian of C.D. and S.D.,. infants, RYAN DUNCAN, individually, collectively and as parent and natural guardian of C.D. and S.D.,. infants, CHRISTINA LOSIER, individually and as a graduate of the East Ramapo Central School District, CHRISTINIA PATTERSON, individually and as a parent and natural guardian of D.B. and M.B., infants, CICERON LAGUERRE, individually and as a taxpayer residing within the East Ramapo Central School District, CINDY SEVIER, individually and as a parent and natural guardian of J.S.1 and J.S.2, infants, CONSTANT FRIEND, individually and as a parent and natural guardian of N.F., infant, COURTNEY J. JASMIN, individually and as a taxpayer residing within the East Ramapo Central School District, CRAIG BEITAL, individually and as a parent and natural guardian of D.B., infant, DANIEL PIERRE MAURICE, individually and as a parent and natural guardian of D.M. and J.M., infants, DAVID MCCRAY, individually and as a taxpayer residing within the East Ramapo Central School District, DAWN HOLNESS, individually, collectively and as parents and natural guardians of D.H. infant, EROLL HOLNESS, individually, collectively and as parents and natural guardians of D.H. infant, DEBRAH BROWN, individually and as a parent and natural guardians of D.B., infant, DEMENTRIUS HOLMES, individually and as a taxpayer residing within the East Ramapo Central School District, DENISE BALTHAZAR, individually and as a parent and natural guardian of D.B., infant, DENISE DEL VALLE, individually and as a parent and viii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 natural guardian of L.J. and P.J., infants, DIEUDONNE FERDILUS, individually and as a parent and natural guardian of A.F. and C.F., J.F., K.F. and S.F., infants, DOMINIQUE REMY, individually and as a graduate of the East Ramapo Central School District, DONOVAN DUNKLEY, individually and as a graduate of the East Ramapo Central School District, DOROTHY ROONEY, individually and as a taxpayer residing within the East Ramapo Central School District, DOSSELAINE BADIO, individually and as a taxpayer residing within the East Ramapo Central School District, DOUGLAS CANTOR, individually and as a parent and natural guardian of Z.C., infant, EDWARD MEDINA, JR., individually and as a parent and natural guardian of J.M., infant, ELDA GOUBOTH, individually and as a taxpayer residing within the East Ramapo Central School District, ELDINE CICERON, individually and as a taxpayer residing within the East Ramapo Central School District, EMMA SUBIAO DIZON, individually and as a parent and natural guardian of M.D., infant, ENID LAMBERT, individually and as a parent and natural guardian of A.M., infant, ENLUS VIERGELINE, individually and as a parent and natural guardian of G.J. and M.J., infants, ENNEDY BASQUIAT, individually and as a taxpayer residing within the East Ramapo Central School District, ESPERA EMMANUEL, individually and as a taxpayer residing within the East Ramapo Central School District, ESTEL CADET, individually and as a parent and natural guardian of A.C., infant, ESTHER DURANDICE, individually and as a taxpayer residing within the East Ramapo Central School District, ETONNANTE JOSEPH, individually and as a parent and natural guardian of R.J., infant, FANNIE ONABANJO Q, individually and as a parent and natural guardian of D.B., infant, FARA ST.FLEUR, individually and as a taxpayer residing within the East Ramapo Central School District, FATIMA DARLENE CANICO, individually and as a taxpayer residing within the East Ramapo Central School District, FELICIA EVANS, individually and as a parent and natural guardian of C.E. and M.E., infants, FLORE ST.LOUIS, individually and as a parent and natural guardian of V.S., infant, FRANCENA HEYWARD, individually and as a parent and natural guardian of M.C. and M.S., infants, FRANCIS JAMAR, individually and as a parent and natural guardian of H.G., I.G. and N.G., infants, FRANCKEL M. JOSEPH, individually and as a taxpayer residing within the East Ramapo Central School District, FRANCOIS BEVOLUS, individually and as a taxpayer residing within the East Ramapo Central School District, FRANDY GEORGES, individually and as a taxpayer residing within the East Ramapo Central School District, FRED MICHEL, individually and as a taxpayer residing within the East Ramapo Central School ix 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 District, GARFIELD WALKER, individually and as a parent and natural guardian of A.W. and J.W., infants, GENIESE THEAGENE, individually and as a parent and natural guardian of S.F., infant, BAUDLAFRE THEAGENE, individually and as a parent and natural guardian of S.F., infant, GERRY DEDIVITIS, individually and as a parent and natural guardian of N.D., infant, GINA M. DUNCAN, individually and as a graduate of the East Ramapo Central School District, GLADYS CAYO, individually and as a parent and natural guardian of M.P. and S.J., infants, GLORIA KEY, individually and as a parent and natural guardian of A.K., S.K. and T.K., infants, GUY CHARLES, individually and as a parent and natural guardian of A.C., M.C. and T.C., infants, ILLYANA DEJEAN, individually and as a parent and natural guardian of M.F., infant, INGRID BOUCICANT, individually and as a graduate of the East Ramapo Central School District, INGRID PENA, individually and as a parent and natural guardian of A.E., B.E. and C.E., infants, ISENIELA JEAN CHARLES, individually and as a graduate of the East Ramapo Central School District, JACQUELINE GRANNUM, individually and as a parent and natural guardian of N.G.1, N.G.2 and N.G.3, infants, JAMES GULIFIELD, individually and as a parent and natural guardian of J.G., Q.G. and Q.G.2, infants, JANAY JORDAN, individually and as a parent and natural guardian of J.F., infant, JEAN BELLANTOU, individually and as a graduate of the East Ramapo Central School District, JEAN BOUCICANT, individually and as a graduate of the East Ramapo Central School District, JEAN CLAUDE AUGUSTE, individually, collectively and as parents and natural guardians of S.A., infant, LANA AUGUSTE, individually, collectively and as parents and natural guardians of S.A., infant, JEAN DENIS, individually and as a parent and natural guardian of W.D., A.D. and S.D., infants, JEAN JOSEPH, individually and as a parent and natural guardian of J.J. and K.J., infants, JEAN MARIO VIL, individually, collectively and as parents and natural guardians of R.V., infant, MARIMENE VIL, individually, collectively and as parents and natural guardians of R.V., infant, JEAN WILSON JOCELIN, individually and as a parent and natural guardian of S.J., infant, JEFHTEY CAJUSTE, individually and as a parent and natural guardian of K.R., infant, JERMAINE WALKER, individually and as a parent and natural guardian of I.W., N.W. and T.W., infants, JESITA CICERON, individually and as a graduate of the East Ramapo Central School District, JOCELINE SHANGASE, individually and as a parent and natural guardian of D.S., infant, JOEL GUE, individually and as a graduate of the East Ramapo Central School District, JOHN BOYKIN, individually and as a graduate of the East Ramapo Central School District, JOHN MILES, individually x 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 and as a parent and natural guardian of X.M., infant, JOHNBERRY BADIO, individually and as a graduate of the East Ramapo Central School District, JORGE MONTANO, individually and as a parent and natural guardian of G.M., infant, JOSEPH CHARLES, individually and as a graduate of the East Ramapo Central School District, JOSEPH FLEURANT, individually and as a graduate of the East Ramapo Central School District, JOSETTE FRANCOIS, individually and as a graduate of the East Ramapo Central School District, JUANA SANTIAGO, individually and as a parent and natural guardian of C.G., infant, JUCANGE GASPORD, individually and as a graduate of the East Ramapo Central School District, JUDITH ISRAEL, individually and as a graduate of the East Ramapo Central School District, JUDITH JOHN ROBINSON, individually and as a parent and natural guardian of L.R. and P.R., infants, JULYSSE ALEXANDRE, individually and as a graduate of the East Ramapo Central School District, JUSTIN BUDDE, individually and as a graduate of the East Ramapo Central School District, KALICHA CAMERON, individually and as a parent and natural guardian of K.C. and O.C., infants, KATHLEEN CANCIO, individually and as a graduate of the East Ramapo Central School District, KATHLEEN D. CASTOR, individually and as a graduate of the East Ramapo Central School District, KATHRIN BALL, individually and as a parent and natural guardian of K.J. and L.J., infants, KATHRYN KARIUS, individually and as a graduate of the East Ramapo Central School District, KATIANA SAME, individually and as a graduate of the East Ramapo Central School District, KATRINA GRIGSBY, individually and as a parent and natural guardian of K.G., infant, KELLY SCOTT, individually and as a graduate of the East Ramapo Central School District, KERNEY OBY, individually, collectively and as Grandparents and natural guardians of D.O., infant, SANDRA OBY, individually, collectively and as Grandparents and natural guardians of D.O., infant, KETNA FRENEL FORESTAL, individually and as a parent and natural guardian of D.F.1, D.F.2 and K.F., infants, KIMBERLY TREVISAN, individually and as a parent and natural guardian of K.T., S.T., V.T.1 and V.T.2., infants, KRISTEN RABELER, individually and as a parent and natural guardian of S.O., infant, LACHANDA JOHNSON, individually and as a parent and natural guardian of R.J., infant, LAGUERRE BERNADIN, individually and as a parent and natural guardian of B.L. and W.L., infants, LAMARRE BEAUVAIS, individually and as a graduate of the East Ramapo Central School District, LATASHA D. EVANS, individually and as a parent and natural guardian of O.J. and R.F., infants, LATICIA THEZAN, individually and as a parent and natural guardian of C.T. and J.T., infants, LATTICHA ACKERMAN, xi 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 individually and as a parent and natural guardian of D.A. and J.J., infants, LEON CAYO, individually, collectively and as parents and natural guardians of I.C., infant, MONA CAYO, individually, collectively and as parents and natural guardians of I.C., infant, LINDA HARVEY, individually and as a parent and natural guardian of B.H. and T.H., infants, LISA GOLDBERG, individually and as a parent and natural guardian of B.M., G.G., M.G. and S.M., infants, LISA PHILLIPS, individually and as a parent and natural guardian of O.P., infant, LOCITA PIERRE, individually and as a parent and natural guardian of C.E., infant, LORA FULLARD, individually and as a graduate of the East Ramapo Central School District, LOUIS JEAN JACQUES, individually and as a parent and natural guardian of J.J., infant, LUCY BROCKS, individually and as a graduate of the East Ramapo Central School District, MACK ROBERTS, individually and as a parent and natural guardian of S.L. and T.B., infants, MAE OLA MCGILL, individually and as a parent and natural guardian of T.L., infant, MANUEL PALMA, individually, collectively and as parents and natural guardians of C.P., J.P., and M.P., infants, MAYRA PALMA, individually, collectively and as parents and natural guardians of C.P., J.P., and M.P., infants, MARC AUGUSTE DESERT, individually and as a graduate of the East Ramapo Central School District, MARCUS EXANTUS, individually and as a graduate of the East Ramapo Central School District, MARGUEDALA LAHENS, individually and as a parent and natural guardian of I.L. and M.L., infants, JEAN EMMANUEL LAHENS, individually and as a parent and natural guardian of I.L. and M.L., infants, MARIA SINGH, individually and as a parent and natural guardian of E.S., infant, PATRICK JEAN BAPTISTE, individually, collectively and as parents and natural guardians of D.J.1 and D.J.2 and P.J., infants, MARIE CADICHON, individually and as a graduate of the East Ramapo Central School District, MARIE CAIZON, individually and as a graduate of the East Ramapo Central School District, MARIE CHARLES, individually and as a graduate of the East Ramapo Central School District, MARIE CLERVEAUX, individually and as a graduate of the East Ramapo Central School District, MARIE JOSEPH, individually and as a graduate of the East Ramapo Central School District, MARIE KATTY DORELEUS, individually and as a graduate of the East Ramapo Central School District, MARIE LEONARD, individually and as a parent and natural guardian of A.L., infant, MARIE THERES LUBIN, individually and as a parent and natural guardian of A.L.1, A.L.2, B.L. and S.L., infants, MARIE Y DELPE MANBRUN, individually and as a graduate of the East Ramapo Central School District, MARION GRANT, individually and as a graduate of the East Ramapo Central xii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 School District, MARLENE SANCHEZ, individually and as a parent and natural guardian of R.F., infant, MARTHA SAINT FORT, individually and as a graduate of the East Ramapo Central School District, MARY HAYES, individually, collectively and as parents and natural guardians of Z.H., infant, MARY JAMES GIBSON, individually, collectively and as parents and natural guardians of K.C., infant, MARYANN WILLIAMS, individually and as a parent and natural guardian of C.W., K.W., O.W., and T.W., infants, MATHIEU DIEUJUSTE, individually and as a taxpayer residing within the East Ramapo Central School District, MICHAEL LAKES, individually and as a parent and natural guardian of A.L., infant, MICHELE LOVELL, individually and as a parent and natural guardian of I.L., infant, MINI JACOB, individually and as a parent and natural guardian of J.J.1 and J.J.2., infants, MONA LEGER, individually and as a parent and natural guardian of M.L. and S.L., infants, MYRTHO FERDINAND, individually and as a parent and natural guardian of B.L. and W.L., infants, NADIA DORCELLY, individually and as a taxpayer residing within the East Ramapo Central School District, NAMOI JOSEPH, individually and as a parent and natural guardian of M.R., infant, NANA TWUM, individually and as a taxpayer residing within the East Ramapo Central School District, NANCY TOUSSAINT, individually, collectively and as parents and natural guardians of H.T., infant, RAPHAEL TOUSSAINT, individually, collectively and as parents and natural guardians of H.T., infant, NAOMI BAHLE, individually and as a taxpayer residing within the East Ramapo Central School District, NAOMI LEGERME, individually and as a taxpayer residing within the East Ramapo Central School District, NAOMY LAGUERRE, individually and as a parent and natural guardian of D.B. and J.A., infants, NATALIE SANCHEZ, individually and as a parent and natural guardian of A.S., C.S. and M.S., infants, NESLIE CADET ALTUME, individually and as a taxpayer residing within the East Ramapo Central School District, NICOLAS MONTANO, individually and as a taxpayer residing within the East Ramapo Central School District, NICOLE RAPHINO, individually and as a parent and natural guardian of A.M., A.P. and M.M., infants, ONIKKA WHITEHEAD, individually and as a parent and natural guardian of E.W. and I.W., infants, ORICHA HERNANDEZ, individually and as a taxpayer residing within the East Ramapo Central School District, ORLANDO LORVEUS, individually and as a parent and natural guardian of A.L., D.L. and J.L., infants, OSNY EXANTUS, individually and as a taxpayer residing within the East Ramapo Central School District, PAMELA HILL, individually and as a parent and natural guardian of K.W.1 and K.W.2, infants, PAMELA SIMPSON, individually and as a xiii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 parent and natural guardian of Q.W., infant, PATRICIA BYNUM, individually and as a taxpayer residing within the East Ramapo Central School District, PHYNESCHEA SHAARIEFEREL, individually and as a parent and natural guardian of J.J. and T.J., infants, PIERRE LOUIS CYNILLE, individually and as a taxpayer residing within the East Ramapo Central School District, PRISCILLA BROWN, individually and as a parent and natural guardian of A.A., infant, PRUCILE VALEUS, individually, collectively and as parents and natural guardians of E.V., N.V. and R.V., infant, RAQUEL NEWELL, individually and as a parent and natural guardian of H.N., infant, RAQUEL PAUL, individually and as a graduate of the East Ramapo Central School District, RASHEED JERIMIE, individually and as a taxpayer residing within the East Ramapo Central School District, RAYMONDE BEAUVAIS, individually and as a taxpayer residing within the East Ramapo Central School District, REBEA GRARDA, individually and as a taxpayer residing within the East Ramapo Central School District, REGINE TAYETTE, individually and as a parent and natural guardian of M.M., infant, RICKEY MCGILL, individually and as a parent and natural guardian of R.M. and S.M., infants, ROBERT MCGEE, individually and as a parent and natural guardian of R.M., infant, ROBERT YOUNG, individually and as a parent and natural guardian of R.Y., infant, MARIE JOSIE ALEXANDRE, individually, collectively and as parents and natural guardians of D.A., E.A. and Z.A., infants, ROSELAURE FLEURANTIN, individually and as a parent and natural guardian of R.F. and S.F., infants, ROSE FRASER, individually and as a taxpayer residing within the East Ramapo Central School District, ROWSON BOIROND, individually and as a graduate of the East Ramapo Central School District, RUBIN JOANUS, individually and as a parent and natural guardian of B.J. and G.J. and P.J., infants, RUTH LAUTURE WALKER, individually and as a parent and natural guardian of J.L., M.L. and O.L.,. infants, SAHARA EVANS, individually and as a graduate of the East Ramapo Central School District, SANTANA ALLARD, individually and as a parent and natural guardian of J.S. and S.A., infants, SERETTE LAURENT, individually and as a parent and natural guardian of A.C., infant, SHARON BRYANT, individually and as a taxpayer residing within the East Ramapo Central School District, SHEILA JACKSON, individually and as a parent and natural guardian of S.J., infant, SHEILA JEFFRIES, individually and as a parent and natural guardian of A.J. and J.J., infants, SHERINE GORDON, individually and as a parent and natural guardian of B.L.1 and B.L.2, infants, SHIRLEY JACKSON, individually and as a parent and natural guardian of T.W., infant, SIABHAIN SNEAD, individually and as a parent xiv 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 and natural guardian of C.B. and T.B., infants, SONIA B. WATKINS, individually and as a parent and natural guardian of G.W., infant, STEPFON MCCRAY, individually and as a graduate of the East Ramapo Central School District, STEPHANIE KARIUS, individually and as a graduate of the East Ramapo Central School District, STEPHANIE LAURENT, individually and as a parent and natural guardian of G.M.1 and G.M.2., infants, STERLING INZAR, individually, collectively and as parents and natural guardians of DI. and T.I., infants, LORRAINE INZAR, individually, collectively and as parents and natural guardians of DI. and T.I., infants, SYLVIE PIERRE, individually and as a parent and natural guardian of E.P., infant, TAMME WHITAKER, individually and as a parent and natural guardian of R.W., infant, TERREL ACKERMAN, individually and as a graduate of the East Ramapo Central School District, TERRY BYNUM, individually and as a parent and natural guardian of A.B. and D.B., infants, TJOKDALEM ARSA ARTHA, individually and as a taxpayer residing within the East Ramapo Central School District, TRACY HARRIS, individually and as a parent and natural guardian of C.H., E.H. and N.H., infants, ULANA WILSON ORTA, individually, collectively and as parents and natural guardians of A.O. and S.W., infant, ANTHONY WILSON ORTA, individually, collectively and as parents and natural guardians of A.O. and S.W., infant, VERONA GREY, individually and as a graduate of the East Ramapo Central School District, VERONICA LEVEILLE, individually and as a parent and natural guardian of C.L., L.L., R.K., and S.L., infants, VICTORIA COPELAND, individually and as a parent and natural guardian of D.C., infant, VICTORIA JEAN CHARLES, individually and as a graduate of the East Ramapo Central School District, VIRGINIA HARRIS, individually and as a parent and natural guardian of T.H., infant, VITAL JOSEPH, individually, collectively and as parents and natural guardians of S.J., infant, TANYA JOSEPH, individually, collectively and as parents and natural guardians of S.J., infant, WELMIR FRANCOIS, individually and as a graduate of the East Ramapo Central School District, WILBUR STUART, individually and as a graduate of the East Ramapo Central School District, WILLARD BODIE, individually and as a parent and natural guardian of D.W., infant, WILLIAM TYNES, individually, collectively and as parents and natural guardians of D.S. and D.T., infants, TEAL YVETTE TYNES, individually, collectively and as parents and natural guardians of D.S. and D.T., infants, WILLIAM FLLOYD, individually and as a parent and natural guardian of J.F., infant, CHARLES PIERRE, individually and as a taxpayer residing within the East Ramapo Central School District, YOLANDA BARHAM, individually and as a parent and natural xv 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 guardian of D.O., infant, YOLANDA NAVARRO, individually and as a parent and natural guardian of R.P., infant, YOLANDE PANIAGUE, individually and as a parent and natural guardian of L.H. and O.H., infants, YOLENE ALTIDOR, individually and as a taxpayer residing within the East Ramapo Central School District, YONEL CADICHON, individually and as a taxpayer residing within the East Ramapo Central School District, YVELOURD TREVIL, individually and as a parent and natural guardian of Y.T., infant, YVETA BELANGE, individually, collectively and as parents and natural guardians of E.B. and Y.B., infants, HARRY BELANGE, individually, collectively and as parents and natural guardians of E.B. and Y.B., infants, YVONNE LORINCE, individually and as a parent and natural guardian of S.L., infant; on behalf of a class of similarly situated persons, on behalf of themselves and on behalf of the East Ramapo Central School District, TAISHA PAQUIOT, individually and as a parent and natural guardian of P.D., infant, CAROLD FORTUNE, individually, collectively and as parents and natural guardians of T.F., infants, FRANKY SAINVIL, individually and as a taxpayer residing within the East Ramapo Central School District, LISA MYERS, individually and as a parent and natural guardian of S.M., infant, SAMESON DESCAS, individually, collectively and as parents and natural guardians of N.D. and S.D., infants, CARME MEHU, individually and as a graduate of the East Ramapo Central School District, MARJORIE METELLUS, individually and as a parent and natural guardian of I.C., infant, HARRIET CHAMBERS, individually and as a parent and natural guardian of A.J., J.C. and R.C., infants, Plaintiffs Appellees, v. DANIEL SCHWARTZ, YEHUDA WEISSMANDL, MOSES FRIEDMAN, MOSHE HOPSTEIN, ELIYAHU SOLOMON, ARON WIEDER, MORRIS KOHN, RICHARD STONE, JOEL KLEIN, ELIEZER WIZMAN, ALBERT D’AGOSTINO, NATHAN ROTHSCHILD, Defendants Appellants, EAST RAMAPO CENTRAL SCHOOL DISTRICT, Defendant. ________________________________________________________________________ xvi 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Before: HALL and LOHIER, Circuit Judges, and REISS, District Judge. We address an Interlocutory and Certified Appeal from a decision of the United States District Court for the Southern District of New York (Seibel, J.) which held that the Plaintiffs Appellees—Students currently attending East Ramapo public schools—have standing to bring 42 U.S.C. § 1983 claims against the Defendants Appellants—present and former East Ramapo School Board Members—for violating the Establishment Clause of the First Amendment to the United States Constitution and that the Board Members are not entitled to qualified immunity. The Board Members argue that the students lack standing because they did not suffer a direct injury resulting from a violation of the Establishment Clause. The Board Members further contend that even if the students have standing, the Board Members are entitled to absolute and qualified immunity. We hold that the Students lack standing to pursue their Establishment Clause claims, and therefore those claims must be dismissed. Judge Reiss dissents in a separate opinion. REVERSED and REMANDED. The Honorable Christina Reiss of the United States District Court for the District of Vermont, sitting by designation. xvii 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 LAURA D. BARBIERI, Arthur Zachary Schwartz, Advocates for Justice Legal Foundation, New York, NY for Plaintiffs Appellees. DAVID J. BUTLER, Bryan M. Killian, Randall M. Levine, David B. Salmons, Stephanie Schuster, Morgan, Lewis & Bockius, LLP, Washington, DC for Defendants Appellants Daniel Schwartz, Yehuda Weissmandl, Moses Friedman, Moshe Hopstein, Eliyahu Solomon, Aron Wieder, Morris Kohn, Richard Stone, Joel Klein, and Eliezer Wizman. MARK D. HARRIS, Adam W. Deitch, Jessica Zietz, Proskauer Rose LLP, New York, NY for Defendant Appellant Nathan Rothschild. MEREDITH D. BELKIN, Marian C. Rice, L’Abbate, Balk, Colavita & Contini, LLP, Garden City, NY for Defendant Appellant Albert D’Agostino. HALL, Circuit Judge: I. BACKGROUND 30 This case is a part of a longstanding conflict within the East Ramapo 31 School District (the “District”) in Rockland County, New York. The Plaintiffs 32 Appellees (“Student Plaintiffs”) are students who are currently enrolled in the 1 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 District’s public school system. They allege that a majority of the East Ramapo 2 School District Board (“School Board”) are of the Orthodox/Hasidic Jewish faith 3 or are sympathetic to the interests of the Orthodox/Hasidic Jewish community 4 (“Board Defendants”).1 The Student Plaintiffs claim that over the last decade the 5 Board Defendants have siphoned money out of the public school system and into 6 yeshivas and other religious organizations for the benefit of the Hasidic 7 children’s religious education and the Board Defendants’ shared religious 8 community. The Student Plaintiffs allege that the Board Defendants have 9 promoted the Hasidic Jewish faith in violation of the First Amendment to the 10 United States Constitution by (1) systematically funding Hasidic schools with 11 public monies by manipulating the Individuals with Disabilities Education Act 12 (“IDEA”) settlement process, (2) providing preferential treatment to Hasidic 13 Institutions when they attempted to sell and lease two school buildings, and (3) 14 buying religious books with public money and loaning the books to Hasidic 15 schools. 1 Student Plaintiffs further assert in their briefs that Board Defendants’ children do not attend the District’s schools. We do not consider this allegation, which appears for the first time in their brief. See Kleinman v. Elan Corp., 706 F.3d 145, 153 (2d Cir. 2013) (citing Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) for the proposition that “a party may not amend pleadings through a brief”). 2 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 I D E A SETTLEMENT PROCESS 2 Pursuant to both federal and state law, school districts are required to 3 provide students with disabilities a free and appropriate public education. 4 School districts are required to create an individualized education program 5 (“IEP”) for each student with a disability. 20 U.S.C. § 1414(d). Each such student 6 is entitled to receive an IEP that is individually tailored to meet the student’s 7 specific needs. Each school district has a Committee on Special Education 8 (“CSE”) that is tasked with comprehensively evaluating each student to identify 9 the student’s individualized special education needs and annual goals. Parents 10 may work with the CSE in order to facilitate a school placement and IEP that 11 satisfies the school district and the family. If a parent disagrees with the CSE’s 12 placement determination, the parent has the right to an Impartial Hearing. See 20 13 U.S.C. § 1415. If, however, parents choose unilaterally to send their child to 14 private school without completing the Impartial Hearing process, the parent 15 does not have a right to receive tuition reimbursement from the state or the 16 school district. See 20 U.S.C. § 1412. In any case, the school district and parents 17 may be reimbursed by the state and federal government for any special 3 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 education placement in a private school that is approved by the CSE. See 20 2 U.S.C. § 1411. 3 4 number of students purportedly eligible for special education services in the 5 District have been placed in private religious schools for the ostensible purpose 6 of providing those students with required services under the IDEA. The Student 7 Plaintiffs allege that the Board Defendants have an unwritten agreement with 8 Hasidic parents by which any Hasidic student who is eligible for an IEP will be 9 placed in a religious school if the Hasidic parents simply write a letter to the 10 Board disagreeing with the public school CSE placement and requesting a 11 private school placement.2 The Board Defendants then pass a private placement 12 resolution in lieu of an Impartial Hearing and reimburse the parents for the 13 tuition of the private placement. Because the IDEA settlements occur prior to the 14 Impartial Hearing, the district is not statutorily entitled to reimbursement from 15 the state or federal government. The Student Plaintiffs allege that the Board 16 Defendants knew or should have known before affirming the IDEA settlement The Student Plaintiffs assert that over the past several years an increasing 2 The Student Plaintiffs allege that the placements occurred at three ethnically, racially, and religiously homogenous schools: Rockland Institute for Special Education, Kiryas Joel (an out of District public school with a substantial Hasidic student population), and Hebrew Academy for Special Children. 4 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 agreements that appropriate non religious school placements were available and 2 were or would have been proposed by the CSE. The Student Plaintiffs allege that 3 by manipulating the IDEA settlement process, the Board Defendants diverted 4 funds away from the public schools in the District and into the Hasidic religious 5 institutions. 6 In the spring of 2010, the Office of Special Education of the New York State 7 Education Department (“NYSED”) conducted a monitoring review to ensure that 8 the District’s policies, procedures, and practices regarding the placements of 9 students with disabilities were consistent with the requirements of federal and 10 state laws and regulations. NYSED determined that the District had violated a 11 number of regulations and had engaged in a practice of placing students with 12 disabilities in private schools when appropriate placements were available in 13 public facilities. NYSED ordered the District to take remedial action that 14 included ordering the CSE to re evaluate and revise the placement 15 recommendations of the students placed in private schools that lacked the proper 16 documentation. 17 In February 2012, after NYSED conducted a follow up monitoring review 18 of the District’s private school special education placements to ensure that the 5 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 deficient practices had been successfully changed, NYSED determined that the 2 District had failed to implement the recommended changes. As a result, NYSED 3 withheld reimbursement, thereby costing the District millions of dollars. 4 REAL ESTATE TRANSACTIONS 5 In April 2009, the School Board closed Colton Elementary School. The 6 School Board then leased Colton to the Hebrew Academy for Special Children 7 (“HASC”) and Congregation Basi Malka, a synagogue, for a period of five years. 8 For three of those five years, the School Board allegedly did not increase the rent 9 and repeatedly allowed HASC to pay rent late.3 In preparing to sell the property, 10 the School Board hired Valuation Plus, Inc. to appraise Colton. Valuation Plus 11 valued the property at $6.6 million. The Town of Ramapo Real Property 12 Assessment lists Colton’s market value at just under $12 million. On May 25, 13 2011, the School Board agreed to sell Colton to HASC and Bais Malka for $6.6 14 million. 15 16 Valuation Plus, Inc., to appraise the property. Valuation Plus appraised Hillcrest 17 at $5.9 million. After issuing a Request for Proposals and receiving a number of In April 2009, the School Board also closed the Hillcrest School and hired The Student Plaintiffs concede that the tenants eventually paid the District all of the back rent that they owed. 6 3 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 bids from local Hasidic institutions, the School Board received a second appraisal 2 from Appraisal Group International that valued Hillcrest at $3.24 million. The 3 Town of Clarkstown estimated Hillcrest’s value at $11 million, and a separate 4 third party appraiser valued the property at $13.9 million. The District accepted 5 Congregation Yeshiva Avir Yakov’s $3.1 million bid. On August 31, 2010, the 6 New York State Commissioner of Education prohibited the sale from closing, 7 and the Congregation began leasing the property instead. On June 6, 2011, the 8 Commissioner officially set aside the sale. 9 TEXTBOOK PURCHASES 10 11 ordered or condoned the ordering of non secular books that reflected traditional 12 values and stories rooted in the Jewish tradition. The books include titles that 13 contain obvious Jewish themes such as: I Keep Kosher, Let’s Go to Shul!, and Why 14 Weren’t You Zisha and Other Stories. The Board Defendants then loaned these 15 books to students attending local yeshivas. 16 Beginning in 2011, the Student Plaintiffs allege, the Board Defendants THE LAWYER: ALBERT D’AGOSTINO 17 In November 2009, the School Board replaced its previous general counsel 18 with Albert D’Agostino. D’Agostino previously gained a reputation for 7 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 representing the Lawrence Union Free School District’s Board of Education, 2 which has political and demographic traits similar to those of the East Ramapo 3 School District. The majority of board members on the Lawrence Board of 4 Education are alleged to have been practitioners of the Orthodox Jewish religion, 5 whose children attended private yeshivas. The Student Plaintiffs allege that, both 6 in this case and in the Lawrence School District, D’Agostino devised an IDEA 7 settlement scheme in order to divert public money into private religious schools. 8 Upon commencing work in East Ramapo, D’Agostino is alleged to have billed 9 the District at a significantly higher hourly rate than the School Board’s previous 10 counsel. According to the plaintiff’s Complaint, at School Board meetings 11 D’Agostino has exhibited an extremely combative and alienating style that has 12 offended and antagonized the community members who are opposed to the 13 School Board’s actions. 14 II. PROCEDURAL HISTORY 15 Three groups of plaintiffs brought the underlying lawsuit: (1) the Student 16 Plaintiffs, (2) former students, and (3) taxpayer plaintiffs. These plaintiffs 17 collectively sued four groups of defendants: current school board members, 8 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 former school board members, the school board’s lawyer Albert D’Agostino,4 2 and the East Ramapo School District.5 3 The underlying lawsuit asserted ten different claims, alleging various 4 violations of common law, state statutes, federal statutes, and the United States 5 Constitution. The district court dismissed, for failure to state a claim, all of the 6 claims except those asserting violations of the Establishment Clause.6 The district 7 court also dismissed all of the former students’ claims for lack of standing. The 8 remaining plaintiffs amended their complaint alleging under 42 U.S.C. § 1983 9 that the Defendants collectively promoted the Hasidic Jewish faith in violation of 10 the First Amendment by (1) systematically funding Hasidic schools with public 11 monies through the manipulation of the IDEA settlement process, (2) providing 12 preferential treatment to Hasidic institutions when they attempted to sell and 13 lease two school buildings, and (3) buying religious books with public money The Student Plaintiffs do not bring claims against D’Agostino with respect to the religious textbook purchases. 5 The plaintiffs originally brought the underlying suit on behalf of the East Ramapo School District; due to the nature of the claims, however, the magistrate judge ordered the District to intervene on behalf of the defendants. 6 The district court initially allowed the New York state law claim for unlawful gift of public funds to move forward but later dismissed this claim as well. 9 4 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 and loaning the books to religious schools. The plaintiffs seek an injunction, 2 monetary damages, and attorneys’ fees. 3 Responding to the Amended Complaint, the defendants then collectively 4 moved for judgment on the pleadings, asserting, among other things, that they 5 were entitled to absolute and qualified immunity and that the Student Plaintiffs 6 lacked standing. The district court determined that the defendants were not 7 entitled to either absolute or qualified immunity and that the Student Plaintiffs 8 had standing. The district court also dismissed all of the plaintiffs’ § 1983 9 Establishment Clause claims for equitable relief against all the former Board 10 Defendants because those defendants were no longer on the Board and an 11 equitable judgment against them could not redress any of the plaintiffs’ injuries.7 12 In addition, the district court dismissed the Taxpayer Plaintiffs’ claims for 13 damages, determining that the Taxpayer Plaintiffs could only be entitled to 14 declaratory and injunctive relief. The Taxpayer Plaintiffs are not a party to this 15 interlocutory appeal, their claims are not before us, and their suit is currently 16 proceeding in the district court. 7 The district court also dismissed the Student Plaintiffs’ claims against former board member Nathan Rothschild for the claims relating to the Colton School transaction and the religious book purchases because he was not on the board at the time these transactions had taken place. 10 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 2 U.S.C. § 1292(b) its decision that the Student Plaintiffs had standing to bring an 3 Establishment Clause claim. We granted the Defendants’ petition for 4 interlocutory appeal to address two issues: whether the Student Plaintiffs have 5 standing and whether the Defendants are protected by absolute or qualified 6 immunity. Because we conclude that the Student Plaintiffs do not have standing 7 to pursue their claims under the circumstances of this case, we address only the 8 standing issue. 9 The district court certified to this court for interlocutory appeal under 28 III. DISCUSSION 10 The Student Plaintiffs allege that the Defendants’ unconstitutional actions 11 contributed to the defunding of the public school system, which in turn injured 12 the Student Plaintiffs by depriving them of educational opportunities and by 13 damaging their psychological and mental well being. For the reasons that follow 14 we hold that the Student Plaintiffs lack standing to assert their Establishment 15 Clause claims because they are only indirectly affected by the conduct alleged to 16 violate the Establishment Clause. 17 We review de novo a district court’s decision regarding plaintiffs’ standing. 18 Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 11 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 183, 191 (2d Cir. 2014). At the pleading stage, we “accept[] all well pleaded 2 allegations in the complaint as true and draw[] all reasonable inferences in the 3 plaintiff’s favor.” Bigio v. Coca–Cola Co., 675 F.3d 163, 169 (2d Cir. 2012) (internal 4 quotation and alteration omitted). In rebutting a motion to dismiss, “[t]he party 5 invoking federal jurisdiction bears the burden of establishing” the elements of 6 standing “with the manner and degree of evidence required.” Lujan v. Defenders 7 of Wildlife, 504 U.S. 555, 561 (1992). 8 Article III of the United States Constitution limits the jurisdiction of federal 9 courts to “Cases” or “Controversies.” U.S. CONST. art. III, § 2. The purpose of 10 Article III is to limit federal judicial power “to those disputes which confine 11 federal courts to a role consistent with a system of separated powers and which 12 are traditionally thought to be capable of resolution through the judicial 13 process.” Valley Forge Christian Coll. v. Ams. United For Separation of Church and 14 State, Inc., 454 U.S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97 (1968)). 15 “One element of the case or controversy requirement is that plaintiffs must 16 establish that they have standing to sue.” Keepers, Inc. v. City of Milford, 807 F.3d 17 24, 38 (2d Cir. 2015) (internal quotation omitted). Three elements comprise the 18 “irreducible constitutional minimum,” Lujan, 504 U.S. at 560, of Article III 12 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 standing: “(1) an injury in fact, (2) a sufficient causal connection between the 2 injury and the conduct complained of, and (3) a likel[ihood] that the injury will 3 be redressed by a favorable decision,” Susan B. Anthony List v. Driehaus, 134 S. Ct. 4 2334, 2341 (2014) (internal quotations omitted). To be sufficient for purposes of 5 standing, an injury must be “an invasion of a legally protected interest which is 6 (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or 7 hypothetical[.]” Lujan, 504 U.S. at 560 (internal quotations, citations, and footnote 8 omitted). In determining standing, we focus on “the party seeking to invoke 9 federal jurisdiction, rather than the justiciability of the issue at stake in the 10 litigation.” Fulani v. Bentsen, 35 F.3d 49, 51 (2d Cir. 1994). 11 In addition to analyzing these standing requirements, we have “adverted 12 to a ‘prudential’ branch of standing,” Lexmark Int’l, Inc. v. Static Control 13 Components, Inc., 134 S. Ct. 1377, 1386 (2014), which embodies “judicially self 14 imposed limits on the exercise of federal jurisdiction,” Elk Grove Unified Sch. Dist. 15 v. Newdow, 542 U.S. 1, 11 (2004) (internal quotation omitted) abrogated on other 16 grounds by Lexmark, 134 S. Ct. at 1387. Prudential standing encompasses the rule 17 against the adjudication of generalized grievances, the rule prohibiting plaintiffs 18 from asserting the rights of third parties, and the rule barring claims that fall 13 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 outside “the zone of interests to be protected or regulated by the statute or 2 constitutional guarantee in question.” Valley Forge, 454 U.S at 474–75 (internal 3 quotation omitted). Although characterized as “prudential,” these concerns 4 relate to the elements of Article III standing. See Lexmark, 134 S. Ct. at 1387 n.3; 5 Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam). 6 As relevant to the Student Plaintiffs’ claims before us, the First 7 Amendment declares that “Congress shall make no law respecting an 8 establishment of religion.” U.S. CONST. amend. I. This mandate has been made 9 “wholly applicable to the States by the Fourteenth Amendment.” Sch. Dist. of 10 Abington Tp., Pa. v. Schempp, 374 U.S. 203, 215 (1963)). Litigants asserting an 11 Establishment Clause claim against a State or municipal defendant must, like all 12 civil litigants, demonstrate standing. See Sullivan v. Syracuse Hous. Auth., 962 F.2d 13 1101, 1107 (2d Cir. 1992). Our jurisprudence has developed three distinct theories 14 of standing entitling an individual to pursue a claim that the Establishment 15 Clause has been violated: (1) taxpayer, (2) direct harm, and (3) denial of benefits. 16 Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 129–30 (2011). These three 17 theories evolved out of the unique context in which plaintiffs bring 18 Establishment Clause claims and have come into existence because 14 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 Establishment Clause injuries, by their nature, can be “particularly elusive.” 2 Saladin v. City Milledgeville, 812 F.2d 687, 691 (11th Cir. 1987). The 3 unconstitutional promotion of religion often injures no particular individual any 4 more than any other individual. That is, unlike most litigated injuries, the harm 5 is often inherently generalized. See Valley Forge, 454 U.S. at 475. Thus, these 6 specific theories of standing developed in response to the concerns that gave rise 7 to our prudential standing jurisprudence, and they have evolved to allow only 8 particular types of Establishment Clause injuries to be adjudicated. 9 Here, the Student Plaintiffs’ sole argument is that they have standing 10 under a direct exposure theory to assert that the Defendants violated the 11 Establishment Clause and directly injured them.8 Altman v. Bedford Cent. Sch. 12 Dist., 245 F.3d 49, 72 (2d Cir. 2001) (“[S]tanding to assert an Establishment Clause 13 claim may rest . . . on the plaintiff’s direct exposure to the challenged activity.”). 14 We therefore address only whether the Student Plaintiffs have sufficiently 8 The term “direct exposure” arises out of our jurisprudence construing the direct harm theory of standing under the Establishment Clause, and our use of the term “direct exposure” here includes all theories of direct harm. See Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 72 (2d Cir. 2001). 15 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 pleaded a basis demonstrating their direct exposure to the unconstitutional 2 establishment of religion.9 3 In order to establish direct exposure standing, the Student Plaintiffs must 4 allege that they are “directly affected by the laws and practices against which 5 their complaints are directed.” Schempp, 374 U.S at 224 n.9. In delineating 6 between a direct effect and an indirect effect of a challenged governmental act, 7 i.e. the directness of a plaintiff’s injury, we are guided by our Establishment 8 Clause jurisprudence. A review of our precedent reveals that direct exposure 9 cases tend to occur in two different contexts: 1) the plaintiff is exposed to and 10 affected by a law that on its face establishes religion (“religious law” cases) or 2) 11 the plaintiff is exposed to and affected by a religious expression or message 12 sponsored or promoted by the government, (“expression” cases).10 Under the 9 As noted above, the plaintiffs who have asserted standing as taxpayers are proceeding in the district court to advance their Establishment Clause claims. The Student Plaintiffs are not among the taxpayers group that is continuing to challenge the constitutionality of the Defendants’ actions. If the taxpayer plaintiffs succeed in proving their claims, they will be entitled to an injunction. In this respect, we note that the primary difference between the Student Plaintiffs’ claims and the taxpayer claims is that, by structuring their claims under a direct exposure theory, the Student Plaintiffs are not limited to injunctive relief and are able to seek damages. 10 Although many of the “religious law” cases do not use the term “direct exposure,” these cases are similar to the “expression” cases in that both types of 16 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 religious law line of cases, a religious law’s prohibition or mandate is grounded 2 in or at least significantly influenced by a “religious” tenet or principle (e.g., the 3 sinfulness of consuming alcohol) and directly and immediately injures the 4 plaintiff’s economic well being.11 See Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 118 5 (1982) (plaintiff was denied a liquor license because of store’s proximity to a 6 church, thus resulting in economic loss); Torcaso v. Watkins, 367 U.S. 488, 489–90 7 (1961) (plaintiff was prohibited from holding office in Maryland because he 8 refused to swear that he believed in God); Two Guys From Harrison Allentown, Inc. 9 v. McGinely, 366 U.S. 582, 592 (1961) (plaintiff was prosecuted for violating blue 10 laws and was prohibited from selling goods on Sunday). Under these cases, the cases involve plaintiffs being confronted directly by the challenged action— either religion infused laws or religious messages. 11 To the extent that the Defendants argue the Student Plaintiffs lack standing because their injury is not religious in nature, see Smith v. Jefferson Cty. Bd. of Sch. Comm’rs., 641 F.3d 197 (6th Cir. 2001) (en banc), we note that standing to assert a violation of the Establishment Clause is broader than standing with respect to Free Exercise Clause claims. See Schempp, 374 U.S. at 224 n.9; Altman, 245 F.3d at 72. Importantly, unlike claims under the Free Exercise Clause, nonreligious and economic injuries are sufficient to establish standing under the Establishment Clause. See McGowan v. State of Maryland, 366 U.S. 420, 430 (1961) (recognizing standing for an Establishment Clause claim where the “[a]ppellants . . . concededly have suffered direct economic injury”). We therefore discern no requirement that an Establishment Clause injury must implicate a plaintiff’s religious sensibilities in order for a plaintiff to establish standing to assert such a claim. 17 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 plaintiffs challenged a facially religious law that was causing personalized 2 economic harm. See McGowan v. State of Maryland., 366 U.S. 420, 430–31 (1961) 3 (“Appellants here concededly have suffered direct economic injury, allegedly 4 due to the imposition on them of the tenets of the Christian religion. We find 5 that, in these circumstances, these appellants have standing to complain that the 6 statutes are laws respecting an establishment of religion.”). 7 In “expression” cases, by comparison, the plaintiff’s injury is not economic. 8 The injury often occurs when a plaintiff comes into contact with, or is exposed to, 9 a government promoted expression of religion. These exposures usually occur in 10 public spaces, see Van Orden v. Perry, 545 U.S. 677, 682 (2005) (plurality op.) 11 (plaintiff challenging a display of the Ten Commandments outside the Texas 12 State Capitol), or in public schools, see Engel v. Vitale, 370 U.S. 421, 423 (1962) 13 (plaintiff challenging a state program of daily classroom prayer). The injury in an 14 “expression” case can be difficult to distill because the basis for the injury is 15 simply exposure to a state sponsored religious message. Cooper v. U.S. Postal 16 Service, 577 F.3d 479, 489 (2d Cir. 2009) (“Standing is often a tough question in the 17 Establishment Clause context, where the injuries alleged are to the feelings alone. 18 This is often the case in religious display cases where the fact of exposure 18 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 becomes the basis for injury and jurisdiction.”). Because this injury is often 2 elusive, the connection between the plaintiff and the challenged action—i.e. the 3 “exposure”—must be direct and immediate in order to satisfy the requirement 4 that the plaintiff have a “direct and personal stake in the controversy.” Sullivan, 5 962 F.2d at 1107. 6 Synthesizing these several types of cases, we can conclude that a plaintiff 7 will have direct exposure standing in at least the following circumstances: when 8 (1) a plaintiff is personally constrained or otherwise subject to control under a 9 governmental policy, regulation, or statute grounded in a “religious” tenet or 10 principle (e.g., a statute that directly precludes plaintiff from conducting 11 business on Sunday); or (2) a plaintiff is personally confronted with a 12 government sponsored religious expression that directly touches the plaintiff’s 13 religious or non religious sensibilities. In both situations, it is a plaintiff’s 14 interaction with or exposure to the religious object of the challenged 15 governmental action that gives rise to the injury. Thus, a plaintiff is “directly 16 affected,” Schempp, 374 U.S at 224 n.9, as opposed to indirectly affected, by an 17 unconstitutional governmental action when a plaintiff’s injury arises out of 18 plaintiff’s immediate and personal confrontation with the object of that 19 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 governmental action—most commonly a government sponsored religious 2 expression or a governmental policy, statute, or regulation grounded in a 3 “religious” tenet or principle. 4 The Student Plaintiffs argue that their claims fall within the direct 5 exposure line of cases because they are “directly affected” by the Defendants’ 6 unconstitutional acts. Schempp, 374 U.S at 224 n.9. They contend that the 7 unconstitutional IDEA settlement payments reduce the size of the District’s 8 budget, which directly affects the quality of the education they receive.12 9 Specifically, the Student Plaintiffs allege that in “order to fund their 10 unconstitutional diversion of public resources to the yeshivas and religious 11 education, the Defendants have significantly cut spending on programs 12 fundamental to the operation of the public schools,” Joint App’x at 1081, and that 13 the Defendants have decreased the number of “advanced classes, [Board of 12 We are skeptical that the Student Plaintiffs have alleged a causal connection between the real estate transactions or the religious book purchases and their educational injury because the real estate sales were never finalized and the religious book purchases had a de minimis effect on the District’s budget. Regardless, our analysis of the Student Plaintiffs’ standing in relation to their IDEA Settlement claims applies with equal force to the real estate transactions and religious book purchases because, to the extent that these actions affect the District’s budget, the relationship between the District’s budget and the educational injury is the same. 20 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 Cooperative Educational Services] programs, teachers, and guidance counselors” 2 available to the Student Plaintiffs, id. at 1073. Additionally, Defendants are 3 alleged to have “eliminated all assistant principals[;] [] extracurricular activities 4 [,] such as art and music[;] and the Students with Interrupted Formal Education 5 (SIFE) program, which ensure[s] that immigrant students achieve their full 6 potential [] and do not significantly lag behind their peers.” Id. In sum, the 7 Student Plaintiffs allege that in order unconstitutionally to fund religious 8 education the Defendants have defunded the educational services upon which 9 the Student Plaintiffs rely. As a result of this transfer of resources, authorized or 10 promoted by the Defendants, the Student Plaintiffs have “performed below their 11 peers in state mandated academic examinations,” id. at 1075, and “are 12 experiencing academic harm and will continue to experience harm to their 13 academic careers,” id. at 1033. 14 15 Plaintiffs seek to couch in terms of an Establishment Clause violation. The 16 allegations of injury in this case, however, preclude their fitting within the type 17 of “direct exposure” injury that our jurisprudence has heretofore regarded as 18 flowing from an Establishment Clause violation. The Student Plaintiffs are We are presented here with a novel theory of liability that the Student 21 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 neither alleging that they are subject to a religiously infused law that prohibits 2 them from learning, see Epperson v. Arkansas, 393 U.S. 97, 100 (1968), nor alleging 3 that they are confronted by a government sponsored religious message, see Engel, 4 370 U.S. at 423. The Student Plaintiffs lack standing because they do not allege 5 that their injuries were caused by a personal exposure to and confrontation with 6 the object of the governmental action they challenge—the alleged IDEA 7 settlement scheme. 8 9 deprived of educational services because public funds, which otherwise would 10 have been available to them, were diverted to an unconstitutional purpose. 11 Contrary to their assertion the Student Plaintiffs have not been “directly affected” 12 by the payment of the IDEA settlements in support of religious institutions; they 13 have only been indirectly affected. Schempp, 374 U.S at 224 n.9 (emphasis added). 14 This is so because the alleged harm—the deprivation of educational services—is 15 merely incidental to the IDEA Settlement disbursements themselves. It does not 16 arise out of the Student Plaintiffs’ personal interaction with the IDEA Settlement 17 process. The Student Plaintiffs’ injury is too far removed, too attenuated, from 18 the alleged unconstitutional component of the act of funneling public monies to Instead, as described above, the Student Plaintiffs allege that they were 22 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 support the advancement of Orthodox Hasidic Jewish schools to constitute the 2 type of injury cognizable and compensable as the result of an Establishment 3 Clause violation. We hold, therefore, that the Student Plaintiffs do not have 4 standing to assert an Establishment Clause violation. 5 We have not found a case, and the Student Plaintiffs do not point to one, 6 where an appeals court has recognized their theory of direct exposure—where 7 the plaintiffs’ exposure is the loss of a favored governmental service or benefit 8 caused, in part, by a diversion of public resources away from such service or 9 benefit to support a preferred religion. This is unsurprising. The Student 10 Plaintiffs’ injury arises out of being enmeshed in an underfunded school system, 11 not out of being directly exposed to the alleged unconstitutional IDEA 12 Settlements themselves. An alleged causal connection between the underfunding 13 of the school district’s budget and the alleged unconstitutional expenditures is 14 insufficient to give rise to a direct injury. To hold otherwise would impermissibly 15 expand the concept of direct exposure to include injuries that are unrelated to the 16 challenged governmental act but which flow in fact from a government’s 23 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 decision to fund one program or service at the expense of another.13 This is a 2 theory of indirect injury and recognizing it would allow plaintiffs who are only 3 incidentally affected by a challenged governmental expenditure to assert 4 Establishment Clause claims. 14 Viewing this injury as a direct exposure to an 5 Establishment Clause violation is foreclosed by our jurisprudence. See Schempp, 6 374 U.S at 224 n.9; Winn, 563 U.S. at 142. 7 We fully recognize that the Student Plaintiffs are not disinterested parties; 8 they undoubtedly have an interest in how the District allocates its funds. Their 13 Similarly, if we were to recognize that the Student Plaintiffs have direct exposure standing here, then there would be little need for separate and distinct standing requirements for taxpayers, see Winn, 563 U.S. at 142 (explaining that a plaintiff must pay taxes and challenge a budgetary expenditure in order to establish taxpayer standing), because essentially all individuals, regardless of whether they pay taxes, are affected by changes in the government’s budget and would therefore have standing to challenge any government expenditure—a result eschewed by our standing jurisprudence, see e.g., Altman, 245 F.3d at 74 (rejecting the view that an act committed by a paid municipal employee constitutes an expenditure for purposes of conferring taxpayer standing because “[n]early all governmental activities are conducted or overseen by employees whose salaries are funded by tax dollars” such that conferring “taxpayer standing on such a basis would allow any municipal taxpayer to challenge virtually any governmental action at any time”). 14 The district court’s previous ruling in this case dismissing the Student Plaintiffs’ Establishment Clause claims for lack of standing to challenge the School Board’s administration of Title I and Title III programs at religious schools because the Student Plaintiffs were not directly exposed to the alleged unconstitutional Title I and Title III contracts is consistent with our analysis and articulation of the direct injury requirement. 24 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 interest, however, is similar to that of any other individual who is affected by the 2 District’s budget, regardless of whether that person is an employee, a student, a 3 vendor, a taxpayer, or a citizen. Because the Student Plaintiffs’ theory of injury is 4 premised on the allegations that reducing the funds available to meet the 5 District’s budget affects them as beneficiaries of the budget, the Student Plaintiffs 6 have suffered an injury that is common to all individuals who are affected by the 7 budget.15 15 Our dissenting colleague contends that the Student Plaintiffs are distinguishable from other beneficiaries of the District’s budget because as students in the District’s schools “they are entitled to have the diverted funds spent on their educations.” Diss. Op. at 7. The dissent, however, cites no authority for this proposition. While the dissent correctly points out that the New York State Constitution requires the state to provide students with a sound basic education, id. at 7 n.3, this alone does not entitle the Student Plaintiffs to have the IDEA reimbursement funds or other diverted funds spent specifically on their educations. Moreover, there is no free standing federal constitutional right to a public education that entitles the Student Plaintiffs to a minimum level of educational services such that the deprivation of those services creates a cognizable injury. See Plyler v. Doe, 457 U.S. 202, 221 (1982) (“Public education is not a ‘right’ granted to individuals by the Constitution.”). Although the Student Plaintiffs “identify the educational programs and resources formerly provided at their schools which are now unfunded,” Diss. Op. at 7, this situation only reflects how the IDEA Settlements affect the District’s budget and, then, how those changes in the District’s budget affect the Student Plaintiffs. It is precisely because the Student Plaintiffs’ alleged injury arises out of the effects that the IDEA Settlements have on the District’s budget, and not out of the effects the IDEA Settlements have on the Student Plaintiffs themselves, that make the Student Plaintiffs’ injury indirect. The Students Plaintiffs’ injury could be direct, 25 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 We note that the Student Plaintiffs’ claims, as pleaded, are not that the 2 students were directly exposed to a school system that is increasingly segregated 3 based on religion, in part because of the alleged IDEA settlement conspiracy. See 4 e.g., Southside Fair Hous. Comm. v. City of New York, 928 F.2d 1336, 1342 (2d Cir. 5 1991) (finding sufficient, for standing purposes, allegations that the plaintiffs’ 6 neighborhood “ha[d] become increasingly and substantially segregated on racial 7 and religious grounds, with a large proportion of the Latino and African 8 American population being displaced to neighborhoods outside the Area,” as 9 “[t]hey live[d] in the very neighborhood where the disputed land sales took 10 place and claim[ed] that they [were] being displaced by the creation of an 11 exclusive white Hasidic enclave”). The Student Plaintiffs have abandoned their 12 Equal Protection claim and, other than in a passing reference to increasing school 13 segregation, they do not assert that experiencing a segregated school system 14 contributes to their injury. Nor do the Student Plaintiffs claim that they have 15 “standing on the ground that they have incurred a cost or been denied a benefit however, if their claim was that the underfunding of educational programs itself was an unconstitutional establishment of religion, i.e., that the Defendants decision to cancel a previously offered program had no secular purpose, primarily advanced religion, or excessively entangled the government with religious affairs. See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). 26 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 on account of their religion.” Winn, 563 U.S. at 130. The Student Plaintiffs claim 2 that their injury arises solely out of the District’s lack of funds and is premised 3 solely on their enrollment in the District’s schools.16 This attenuated relationship 4 among the alleged unconstitutional expenditure, the District’s budget, and the 5 Student Plaintiffs’ enrollment in the District’s schools is insufficient to confer 6 standing because the alleged unconstitutional expenditure has an effect on the 7 Student Plaintiffs’ education that is only indirectly and incidentally related to the 8 unconstitutionality of the expenditure. 9 For the reasons articulated above, we hold that the Student Plaintiffs lack 10 standing to assert an Establishment Clause claim against the Defendants. It is 11 therefore unnecessary to decide whether the Defendants are entitled to absolute 12 or qualified immunity because our decision with respect to standing renders this While we recognize that education “is not merely some governmental benefit indistinguishable from other forms of social welfare legislation,” Plyler, 457 U.S. at 221, we are hesitant to recognize the Student Plaintiffs’ theory of liability— holding individual Board Member Defendants responsible for damages for educational injuries caused by a lack of resources due to an Establishment Clause violation. This theory attempts to remedy an injury that may be causally related, but is not sufficiently connected, to the unconstitutional act or within the zone of interests of the underlying constitutional prohibition. See Elk Grove, 542 U.S. at 12 (noting “the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked” (internal quotes omitted)). 27 16 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 issue moot.17 See Morris Hayes v. Bd. of Educ. Of Chester Union Free School Dist., 423 2 F.3d 153, 159 (2d Cir. 2005) (finding it unnecessary to decide whether defendants 3 were entitled to qualified immunity when the court dismissed the claims on 4 separate grounds). 5 IV. CONCLUSION 6 We have considered the Student Plaintiffs’ remaining arguments and find 7 them to be without merit. We REVERSE the district court’s decision and 8 REMAND with instructions to dismiss the Student Plaintiffs’ claims against all 9 defendants. To be clear, we make no determination as to the merits of the Student Plaintiffs’ claims. 28 17 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 REISS, District Judge, dissenting: 2 The majority holds that Student Plaintiffs fail to allege standing to assert 3 42 U.S.C. § 1983 claims because they are only indirectly affected by Defendants’ 4 alleged Establishment Clause violations. I respectfully disagree, and would 5 affirm in part the district court’s decision.1 6 7 “direct exposure theory” and, for that reason, addresses “only whether the 8 Student Plaintiffs have sufficiently pleaded a basis demonstrating their direct 9 exposure to the unconstitutional establishment of religion.” Maj. Op. at 15–16 10 (footnote omitted). I believe Students Plaintiffs’ claims are broader than the 11 majority’s formulation, and that the Establishment Clause does not require 12 “direct exposure” to the unconstitutional establishment of religion. See Sch. Dist. 13 of Abington Twp. v. Schempp, 374 U.S. 203, 221 (1963) (“The Establishment Clause, 14 unlike the Free Exercise Clause, does not depend upon any showing of direct 15 governmental compulsion and is violated by the enactment of laws which 16 establish an official religion whether those laws operate directly to coerce non The majority cabins Student Plaintiffs’ Establishment Clause claims to a 1 I agree with the majority that Student Plaintiffs cannot establish standing to challenge real estate transactions that were not consummated or the provision of a de minimus number of religious books. 1 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 observing individuals or not.”). At the pleadings stage, I would find that 2 Student Plaintiffs adequately allege they are “directly affected by the . . . 3 practices against which their complaints are directed.” Id. at 224 n.9. 4 Although Student Plaintiffs bear the burden of establishing standing as a 5 jurisdictional requirement, “standing allegations need not be crafted with precise 6 detail, nor must the plaintiff prove his allegations of injury.” Baur v. Veneman, 7 352 F.3d 625, 631 (2d Cir. 2003). Indeed, “general factual allegations of injury 8 resulting from the defendant’s conduct may suffice[.]” Lujan v. Defs. of Wildlife, 9 504 U.S. 555, 561 (1992). In determining standing, we must “accept [] all well 10 pleaded allegations in the complaint as true [and] draw [] all reasonable 11 inferences in the plaintiff’s favor.” Chabad Lubavitch of Litchfield Cty., Inc. v. 12 Litchfield Historic Dist. Comm’n, 768 F.3d 183, 191 (2d Cir. 2014) (alterations in 13 original and internal quotation marks omitted) (reversing and remanding district 14 court’s dismissal of claims for lack of standing). 15 The majority concludes that Student Plaintiffs fail to allege injuries that are 16 sufficiently direct for prudential standing. The prudential standing doctrine is 17 “in some tension with [the Supreme Court’s] recent reaffirmation of the principle 18 that a federal court’s obligation to hear and decide cases within its jurisdiction is 2 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 virtually unflagging.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. 2 Ct. 1377, 1386 (2014) (internal quotation marks omitted). At the pleadings stage, 3 its requirements are neither stringent nor inflexible. See Flast v. Cohen, 392 U.S. 4 83, 99, 101 (1968) (observing that “[s]tanding has been called one of ‘the most 5 amorphous (concepts) in the entire domain of public law[]’” and that “the 6 emphasis in standing problems is on whether the party invoking federal court 7 jurisdiction has ‘a personal stake in the outcome of the controversy,’ and whether 8 the dispute touches upon ‘the legal relations of parties having adverse legal 9 interests[]’”) (citation and footnote omitted). Prudential standing ensures that 10 Student Plaintiffs’ claims “fall within the zone of interests to be protected or 11 regulated by the statute or constitutional guarantee in question[,]” a standard 12 that, at least for pleading purposes, is satisfied here. Valley Forge Christian Coll. v. 13 Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 475 (1982) (internal 14 quotation marks omitted). 15 “The clearest command of the Establishment Clause is that one religious 16 denomination cannot be officially preferred over another.” Larson v. Valente, 456 17 U.S. 228, 244 (1982). “Primary among those evils” against which the 18 Establishment Clause guards “have been sponsorship, financial support, and 3 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 active involvement of the sovereign in religious activity.” Comm. for Pub. Educ. & 2 Religious Liberty v. Nyquist, 413 U.S. 756, 772 (1973) (internal quotation marks 3 omitted). “It is equally well established, however, that not every [practice] that 4 confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon religious institutions 5 is, for that reason alone, constitutionally invalid.” Id. at 771. For this reason, 6 Establishment Clause cases are fact sensitive,2 often requiring courts to “sift[] 7 through the details[,]” employ “careful judgment[,]” and draw “fine 8 distinctions[.]” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 847 48 9 (1995) (O’Connor, J., concurring). 10 In a close case like this one, we should hesitate to dismiss Student 11 Plaintiffs’ constitutional claims based on the application of “[s]ynthesiz[ed]” 12 rules that emphasize narrow categories of “direct exposure[.]” Maj. Op. at 19. 13 Establishment Clause jurisprudence does not mandate that rigid approach. To 14 the contrary, “[b]ecause standing in Establishment Clause cases can be shown in 2 In Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), the Supreme Court, which was sharply divided as to the merits, nonetheless unanimously agreed that whether there is a violation of the Establishment Clause is a “fact sensitive” inquiry. 134 S. Ct. at 1825 (plurality opinion); id. at 1838 (Breyer, J., dissenting) (“As we all recognize, this is a ‘fact sensitive’ case.”); id. at 1851 (Kagan, J., dissenting) (“The facts here matter to the constitutional issue; indeed, the majority itself acknowledges that the requisite inquiry [is] a ‘fact sensitive’ one[.]”). 4 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 various ways,” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 145 (2011), 2 “[i]f an establishment of religion is alleged to cause real injury to particular 3 individuals, the federal courts may adjudicate the matter.” Id. “Like other 4 constitutional provisions, the Establishment Clause acquires substance and 5 meaning when explained, elaborated, and enforced in the context of actual 6 disputes.” Id. 7 This court’s decision in Altman v. Bedford Central School District, 245 F.3d 49 8 (2d Cir. 2001) imposes no greater burden. The Altman court explained that 9 “direct exposure to the challenged activity” is only one basis for Establishment 10 Clause standing, which, unlike the Free Exercise Clause, does not require “‘proof 11 that particular religious freedoms are infringed.’” Altman, 245 F.3d at 72 12 (quoting Schempp, 374 U.S. at 224 n.9). As an example of “direct exposure,” the 13 Altman court pointed to “students attending a public school, and their parents, 14 hav[ing] standing to challenge a program of Bible reading in the school because 15 they are ‘directly affected by the laws and practices against which their 16 complaints are directed[.]’” Id. (quoting Schempp, 374 U.S. at 224 n.9). In this 17 dicta, the Altman court did not suggest that “direct exposure” required the 18 students to actually be exposed to Bible reading. Altman thus reflects the 5 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 important distinction that “a violation of the Free Exercise Clause is predicated 2 on coercion while the Establishment Clause violation need not be so attended.” 3 Schempp, 374 U.S. at 223. For this same reason, a plaintiff’s ability to avoid direct 4 exposure is not a defense to an Establishment Clause violation. See id. at 224 25 5 (“[T]he fact that individual students may absent themselves [from Bible reading 6 in school] upon parental request[] . . . furnishes no defense to a claim of 7 unconstitutionality under the Establishment Clause.”). 8 As the Altman court further recognized, the Establishment Clause does not 9 require personal confrontation with, or constraint by, religious tenets, practices, 10 or expressions; it requires only some “direct injury” as opposed to an 11 “indefinite” injury indistinguishable from that suffered by the public at large: 12 “[t]he party who invokes the power must be able to show, not only that the 13 [practice] is invalid but that he has sustained or is immediately in danger of 14 sustaining some direct injury as a result of its enforcement, and not merely that he 15 suffers in some indefinite way in common with people generally.” 16 Altman, 245 F.3d at 72 (quoting Doremus v. Bd. of Educ. of Borough of Hawthorne, 17 342 U.S. 429, 434 (1952)) (emphasis supplied). 6 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 In this case, each Student Plaintiff attends one of the District’s public 2 schools. Collectively, they challenge Defendants’ alleged systematic diversion of 3 state and local taxes, federal funds, and grant monies in order to finance special 4 education at Yeshivas. They identify the educational programs and resources 5 formerly provided at their schools which are now unfunded, explain how they 6 are entitled to have the diverted funds spent on their educations,3 and claim 7 Defendants’ alleged diversion of resources deprives them of their “right to a 8 sound basic education by the laws and policies of the federal government and 9 the State of New York.” Joint App’x at 1072. Student Plaintiffs allege they can 10 demonstrate through budgetary records and academic test scores a direct causal 11 link between Defendants’ alleged diversion of District funds and the academic 12 harm they suffer. Accepting these allegations as true and drawing all reasonable 3 Although the majority correctly points out “there is no free standing federal constitutional right to a public education that entitles the Student Plaintiffs to a minimum level of educational services[,]” Maj. Op. at 25 n.15, the New York Constitution provides that the New York Legislature “shall provide for the maintenance and support of a system of free common schools, wherein all the children of [that] state may be educated.” N.Y. Const. art. XI, § 1; see also Bd. of Educ., Levittown Union Free Sch. Dist. v. Nyquist, 439 N.E.2d 359, 369 (N.Y. 1982) (interpreting the New York Constitution to require provision of “a sound basic education”). In any event, an Establishment Clause claim does not require Student Plaintiffs to establish that the violation deprived them of a free standing federal constitutional right. 7 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 inferences in Student Plaintiffs’ favor, at the pleading stage, their causation 2 allegations are not implausible. See Plyler v. Doe, 457 U.S. 202, 222 (1982) 3 (recognizing that the deprivation of an education exerts an “inestimable toll . . . 4 on the social economic, intellectual, and psychological well being of the 5 individual”). 6 In characterizing Student Plaintiffs’ injuries as “too far removed, too 7 attenuated, from the alleged unconstitutional component of the act of funneling 8 public monies to support the advancement of Orthodox Hasidic Jewish 9 schools[,]” Maj. Op. at 22–23, the majority ignores the fact that the Student 10 Plaintiffs’ educational harm arises directly out of the allegedly unconstitutional 11 acts, the general public, including taxpayers, are not suffering this same injury, 12 and Student Plaintiffs could not assert Establishment Clause claims if the District 13 diverted the same funds for a secular purpose. As a result, Student Plaintiffs’ 14 alleged injuries are not “similar to that of any other individual who is affected by 15 the District’s budget, regardless of whether that person is an employee, a 16 student, a vendor, a taxpayer, or a citizen[,]” Maj. Op. at 25, and they do not 17 allege a “generalized grievance[] . . . [that would be] most appropriately 18 addressed in the representative branches.” Valley Forge, 454 U.S. at 475 (internal 8 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 quotation marks omitted). Moreover, no other class of plaintiffs can assert this 2 same claim or is better situated to assert a deprivation of this same interest. See 3 Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 99 100 (1979) (noting that 4 “under the prudential principles[,] . . . the judiciary seeks to avoid deciding 5 questions of broad social import where no individual rights would be vindicated 6 and to limit access to the federal courts to those litigants best suited to assert a 7 particular claim”). 8 Although the majority points out that the Student Plaintiffs fail to cite 9 precedent authorizing their Establishment Clause claim, it is equally true that 10 there is no precedent prohibiting it. Accordingly, “[r]ather than attempting to 11 define the outer limits” of the Establishment Clause “on the basis of the present 12 record, the Court’s opinion [should] wisely permit[ ] the parties . . . to create a 13 factual record that will inform that decision.” United States v. Georgia, 546 U.S. 14 151, 160 (2006) (Stevens, J., concurring) (footnote omitted); see also Rosenberger, 15 515 U.S. at 838 39 (“If there is to be assurance that the Establishment Clause 16 retains its force in guarding against those governmental actions it was intended 17 to prohibit, we must in each case inquire first into the purpose and object of the 18 governmental action in question and then into the practical details of the 9 14 3721 cv(L) Montesa, et al. v. Schwartz, et al. 1 program’s operation.”). “Tenuous theories of liability are better assayed in the 2 light of actual facts than in pleader’s supposition.” Adato v. Kagan, 599 F.2d 1111, 3 1117 (2d Cir. 1979); see also Braden v. Univ. of Pittsburgh, 477 F.2d 1, 4 5 (3d Cir. 4 1973) (“It would perhaps be possible for us to decide this last issue on the present 5 record but we think we should not do so. Very important constitutional 6 questions are presented and the Supreme Court has repeatedly informed us that 7 such difficult issues should not be decided except upon a full record and after 8 adequate hearing.”) (collecting Supreme Court cases). 9 For the reasons set forth above, I would affirm in part the district court’s 10 conclusion that Student Plaintiffs have adequately alleged standing at the 11 pleadings stage, and I would defer a determination of qualified immunity.4 12 4 See Johnson v. Jones, 515 U.S. 304, 317 (1995) (observing that “an interlocutory appeal concerning [the factual basis for qualified immunity] in a sense makes unwise use of appellate courts’ time, by forcing them to decide in the context of a less developed record, an issue very similar to one they may well decide anyway later, on a record that will permit a better decision” and concluding that “we are persuaded that [i]mmunity appeals . . . interfere less with the final judgment rule if they [are] limited to cases presenting neat abstract issues of law”) (internal quotation marks omitted). 10