The opinion of the court was delivered by: SPATT
The plaintiffs Ray J. Mincone, Barbara A. Gheta, George Ehman, Victoria Guadagna, and Hugh McElhon (the "plaintiffs") commenced this action on May 5, 1995 and filed an amended complaint on June 15, 1995. The amended complaint, which seeks declaratory and injunctive relief as well as attorneys fees and costs, challenges a course entitled "Family Life and Human Sexuality" ("PED 251"), which is part of the curriculum at the defendant Nassau County Community College ("NCCC"). Specifically, the first cause of action seeks a declaration that PED 251 violates Article 1 § 3 of the New York State Constitution, which requires religious neutrality and protects free exercise of religion. The second cause of action seeks a declaration that PED 251 violates the free exercise of religion and establishment of religion clauses of the First Amendment of the United States Constitution. The fifth cause of action seeks an order enjoining the conduct of PED 251 and dissemination of its course materials as violative of 42 U.S.C. 2000bb (the Religious Freedom Restoration Act). The sixth cause of action seeks an order requiring certain disclosure of the course content under N.Y. Educ. § 607. By stipulation dated October 18, 1995, the plaintiffs discontinued several other causes of action and also removed the Organization of Senior Citizens and Retailers as a party plaintiff.
The plaintiffs moved the Court for an order preliminarily enjoining the defendants from conducting PED 251 or using challenged course materials in any course during the pendency of this action. The defendants, Nassau County Community College; Dr. Sean Fanelli, in his capacity as President of Nassau County Community College; the Board of Trustees of Nassau County Community College; Roslyn Udow in her capacity as Chairman of the Board of Trustees of Nassau County Community College, Dr. Joseph Dondero and Professor Valeri Pinhas, in their capacities as employees of Nassau County Community College (the "defendants"), moved to dismiss the complaint, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a cause of action upon which relief may be granted. The defendants also sought removal of the plaintiff Ray J. Mincone from this action on the ground that he allegedly lacks standing to bring the claims.
The Court heard oral argument on these motions on December 15, 1995 and rendered a partial decision on the record on that date. On December 15, 1995, the Court granted leave to the parties to further brief the issue of dismissal of the plaintiffs' free exercise causes of action. This written decision is based upon consideration of the papers in support of and in opposition to the motions, the parties' respective positions as stated at oral argument on December 15, 1995, the defendants' letters dated December 19, 1995 and January 11, 1996 and the plaintiffs' letter dated January 4, 1996.
The individual plaintiffs, except the plaintiff Mincone, are residents and taxpayers of Nassau County. The plaintiff Mincone was enrolled in PED 251 during the summer semester of 1995 as a senior citizen auditor; he enrolled in the course again for the fall 1995 semester. The defendants are Nassau County Community College ("NCCC"), its president, its board of trustees and two faculty members involved in teaching PED 251. The amended complaint identifies NCCC as being "chartered under Education Law Article 126, sponsored by Nassau County and  funded in part by Special County Appropriations." The plaintiffs allege that PED 251 "expresses a philosophy of hostility to certain religious views and promotes other religious views." Specifically, the amended complaint alleges that the course "constitutes a deliberate and malicious disparagement of traditional Jewish and Christian, and particularly Catholic, teachings on marriage, procreation and adultery" and "promotes the religious teachings of particular Eastern religions, such as Hinduism and Buddhism regarding sexuality." The amended complaint alleges that the course violates the "strict religious neutrality" required by the United States and New York Constitutions, and, as such, "burdens and violates the free exercise and enjoyment of religious profession and worship."
A. The defendants' motion to dismiss the complaint
1. the standard governing a Rule 12(b)(6) motion
On a motion to dismiss for failure to state a claim, "the court should not dismiss the complaint pursuant to Rule 12(b)(6) unless it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'". Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); see also IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052-53 (2d Cir. 1993). The Second Circuit stated that in deciding a Rule 12(b)(6) motion a Court may consider "only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken". Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993); see also Rent Stabilization Ass'n of the City of New York v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993) (citing Samuels, 992 F.2d at 15).
It is not the Court's function to weigh the evidence that might be presented at a trial, the Court must merely determine whether the complaint itself is legally sufficient, see Goldman, 754 F.2d at 1067, and in doing so, it is well settled that the court must accept the allegations of the complaint as true, see LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Procter & Gamble Co. v. Big Apple Indus. Bldgs, Inc., 879 F.2d 10, 14 (2d Cir. 1989), cert. denied, 493 U.S. 1022, 107 L. Ed. 2d 743, 110 S. Ct. 723 (1990), and construe all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied, 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989).
The Court is mindful that under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief", Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice". Fed. R. Civ. P. 8(f). It is within this framework that the Court addresses the present motion to dismiss.
The defendants argue that the plaintiffs' constitutional claims are barred by NCCC's First Amendment right to academic freedom. The defendants correctly state that academic freedom is a special concern of the first amendment, which extends both to educators and institutions. See e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312, 57 L. Ed. 2d 750, 98 S. Ct. 2733 (1978); Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 226, n.12, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985). The principles of academic freedom may provide the defendants with defenses to the plaintiffs' claims. However, they do not bar the plaintiffs from challenging the policies, activities or course material as violative of constitutional guarantees.
Furthermore, the first amendment expression rights of public entities and employees are not absolute. See e.g., Waters v. Churchill, 128 L. Ed. 2d 686, U.S. , 114 S. Ct. 1878 (1994); Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), cert. denied, 133 L. Ed. 2d 114, U.S. , 116 S. Ct. 173 (1995). The Court declines to dismiss the amended complaint based on considerations of academic freedom.
iii. standing of the plaintiff Ray Mincone
The defendants challenge the standing of Ray Mincone to bring this action. As the Second Circuit has stated,
It is a commonplace that jurisdiction of federal courts is limited to cases and controversies. U.S. Const. art III, § 2, cl. 1. Hence, litigants are required to demonstrate a "personal stake" or legally cognizable interest in the outcome" of their case. United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395, 100 S. Ct. 1202, 1208, 63 L. Ed. 2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 1951, 23 L. Ed. 2d 491 (1969)). While the standing doctrine evaluates this personal stake as of the outset of the litigation, the mootness doctrine ensures that the litigant's interest in the outcome continues to exist throughout the life of the lawsuit, see Geraghty, 445 U.S. at 396-97, 100 S. Ct. at 1209; Etuk v. Slattery, 936 F.2d 1433, 1441 (2d Cir. 1991), including the pendency of the appeal. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253, 108 L. Ed. 2d 400 (1990). Accordingly, a case that is "live" at the outset may become moot "when it becomes impossible for the courts, through the exercise of their remedial powers, to do anything to redress the injury." Alexander v. Yale,, 631 F.2d 178, 183 (2d Cir. 1980); see Lewis, 494 U.S. at 477, 110 S. Ct. at 1253.
The complaint, which was filed on May 5, 1995 states that Mincone "is" enrolled in PED 251. The papers submitted in connection with this motion state that Mincone enrolled in the course for a second time so that he is a student in PED 251 for the fall 1995 semester. Mincone declares in an affidavit that his purpose in enrolling in PED 251 is "to challenge it under the Constitution because I am deeply concerned about the use of tax dollars to propagandize against the moral tenets of Christianity."
The Second Circuit has stated that "'students' declaratory and injunctive claims against the universities that they attend are mooted by the graduation of the students, because after graduation and absent a claim for damages, 'it becomes impossible for the courts, through the exercise of their remedial powers, to do anything to redress the injury.'" Fox v. Board of Trustees, 42 F.3d 135, 140 (2d Cir. 1994) (citations omitted), cert. denied, 132 L. Ed. 2d 873, 115 S. Ct. 2634 (1995). No money damages are claimed in this action and it is apparent that Mincone's participation in the course at issue, if not already concluded, would not continue throughout this litigation. Nor does the complaint even suggest that Mincone is suing in a representational capacity on behalf of "similarly situated" individuals. See Cook, supra, 992 F.2d at 20 (commenting that "a student's claim may not be rendered moot by graduation if he or she sued in a "representational capacity" as the leader of a student organization" (citations omitted)).
Finally, this case does not fall within the exception to the mootness doctrine for situations "capable of repetition, yet evading review." Id. at 19 (citing Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 55 L. Ed. 310, 31 S. Ct. 279 (1911)). In the absence of a class action, that exception is unavailable unless the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and there is a reasonable expectation that the same complaining party would be subjected to the same action. Cook, supra, 992 F.2d at 19. There is nothing in the complaint to suggest that Mincone is required to repeat the course, which he apparently satisfactorily completed at least once and perhaps twice.
The mootness doctrine ensures that the litigant's interest in the outcome of the case continues to exist throughout the life of the lawsuit, including appeal. Id. (citing United States Parole Comm'n v. Geraghty, 445 U.S. 388, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980)). In student suits such as this one, the declaratory and injunctive relief sought in the amended complaint "could provide no legally cognizable benefit to [the student] Plaintiffs once they had left the [university] system." Fox, supra, 42 F.3d at 140. "Further, the condition of mootness is not a defense that could be waived by the Defendants, but rather is a condition that deprives the court of subject matter jurisdiction." Id.
The plaintiffs state that they intend to file a motion to certify this action as a class action under Fed. R. Civ. P. 23. They urge the Court not to remove Ray Mincone as a plaintiff at this time because he is a potential member of the class. The plaintiffs also contend that Mincone should remain a plaintiff in this action based on his status as a New York State taxpayer. The Court notes that there is no allegation in the amended complaint in its present form that Nassau Community College is funded by state tax dollars. Furthermore, the issue of standing to bring a suit based on a plaintiff's capacity as a state taxpayer involves different considerations than the issue of standing as a municipal taxpayer to challenge municipal action. See e.g., Board of Educ. v. N.Y. State Teachers Retirement System, 60 F.3d 106, 110-11 (2d Cir. 1995) ("It is well settled that whether a plaintiff has standing in his capacity as a taxpayer turns largely on the sovereign whose act he challenges."). Finally, the Court declines to address this motion to possible amendments to the complaint that have not yet been sought.
Based on well settled Second Circuit law, the Court finds that the action is moot as to Mincone. Because the Court has no jurisdiction over the claims asserted by Mincone, the defendants' motion to dismiss him as a plaintiff is granted.
iv. establishment of religion claims
The defendants argue that the that the plaintiffs have stated no viable claim regarding the establishment of religion under the First Amendment of the United States Constitution or the New York State Constitution because the challenged course and course materials have no religious content. Specifically, the defendants contend that the establishment of religion claims should be dismissed because the "plaintiffs have failed to allege that any part of the Lemon test has been violated." The defendants refer to the tests set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971) to determine whether governmental action violates the Establishment Clause. These tests inquire whether the challenged action (1) ...