To prevail on this type of equal protection claim, plaintiffs would
have had to show that they were treated differently in comparison with
other parties similarly situated and that there was no rational basis for
that disparate treatment. See, e.g., Sag Harbor Port Assoc. v. Village of
Sag Harbor, 21 F. Supp.2d 179, 185 (E.D.N.Y. 1998) (citing City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439-40, 105 S.Ct. 3249,
87 L.Ed.2d 313 (1985)). This plaintiffs have failed to do.
First, contrary to plaintiffs' assertions, New York City's education
system and those of other jurisdictions within the state are not
similarly situated: New York City's system is substantially larger and
its governance structure is unique. Compare N Y Educ. Law § 1701 et
seq. (specifying the powers and duties of educational bodies in Union
Free School Districts), with id. § 2590 et seq. (specifying the same
for New York City). Indeed, New York City is the only jurisdiction within
the state that even has community boards. Compare id., art. 52-A, with
id., art. 52. Given such differences, the Equal Protection Clause does
not mandate identical treatment of the sort sought by plaintiffs. Cf.
Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997) ("[T]he constitutional
guarantee of equal protection does not forbid all classifications, but
rather "keeps governmental decisionmakers from treating differently
persons who are in all relevant respects alike.'") (emphasis added)
(quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d
1 (1992)), cert. denied, ___ U.S. ___, 118 S.Ct. 1812, 140 L.Ed.2d 950
Second, even assuming that the differences between New York City's
school system and those in other jurisdictions were immaterial,
plaintiffs have failed to produce any evidence to show that the
legislature's disparate treatment lacked a rational basis. The state
legislature is presumed to act constitutionally, and it is a plaintiffs
burden to prove otherwise. See Butts v. City of New York, 779 F.2d 141,
147 (2d Cir. 1985); cf. New York State Club Ass'n v. City of New York,
487 U.S. 1, 11, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988) (holding that a
plaintiff must show that a statute "`could never be applied in a valid
manner'" to prevail in a facial attack on its validity) (quoting Members
of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). Accordingly, this category
of equal protection claims must be dismissed.
Plaintiffs' next set of equal protection claims focuses on the alleged
effects of N Y Educ. Law § 2590 on community boards within New York
City. Specifically, plaintiffs complain that the statute discriminates
against minorities because it limits the ability of community boards to
hire school officials and to be represented by counsel of choice. (See
Warden Compl. ¶¶ 44, 49) However, plaintiffs' conclusory assertions to
the contrary notwithstanding, there is no evidence to support a finding
that N.Y. Educ. Law § 2590 disparately affects minorities, much less
that its drafters were motivated by discriminatory purpose — the
sine qua non of an equal protection claim. See Lewis v. Casey,
518 U.S. 343, 374, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ("[A]bsent
proof of discriminatory purpose, a law or official act does not violate
the Constitution "solely because it has a . . . disproportionate impact.'
") (quoting Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976)). Moreover, to the extent that N.Y. Educ. Law §
2590 does actually limit the powers of community boards, it does so with
respect to all community boards in New York City, regardless of racial or
ethnic composition. Insofar as plaintiffs bring a facial challenge to the
statute under the Equal Protection Clause, therefore, their claims must
Plaintiffs' remaining equal protection claims do not pose a facial
attack on N Y Educ. Law § 2590, but rather challenge particular
actions of defendant Chancellor Crew. Specifically, plaintiffs charge
that the Chancellor singled out community boards 5, 7, 9 and 12 for
adverse treatment because they were controlled or dominated by
minorities. (See Warden Compl. ¶ 59) Community boards 5, 7, 9 and 12
were, indeed, controlled or dominated by minorities, but to establish a
violation of the Equal Protection Clause requires more, namely, proof of
discriminatory purpose. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d
Cir. 1995) ("To prove an equal
protection violation, claimants must prove purposeful discrimination
directed at an identifiable or suspect class." (citations omitted)).
Discriminatory purpose "implies that the decisionmaker . . . selected or
reaffirmed a particular course of action at least in part `because of,'
not merely `in spite of,' its adverse effects upon an identifiable
group." Personnel Adm'r v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 30
L.Ed.2d 870 (1979).
In these cases, plaintiffs have failed to "submit any competent
evidence to establish that the Chancellor acted with discriminating
purpose in suspending and/or removing members of community boards 5, 7, 9
and 12. In light of the fact that the Municipal Defendants have furnished
evidence that the Chancellor's actions were taken for legitimate,
nondiscriminatory reasons — namely, in response to malfeasance and
nonfeasance on the part of community board members — this failure
warrants summary judgment against plaintiffs.*fn3 See, e.g., Shelden v.
Barre Belt Granite Employer Union Pension Fund, 25 F.3d 74, 79 (2d Cir.
1994) ("In opposition to a properly supported motion for summary
judgment, the opposing party must come forward with materials such as
affidavits, documents, interrogatory answers, or other competent evidence
to show that there is a genuine issue of material fact for trial.").
Accordingly, plaintiffs' equal protection claims are all dismissed.*fn4
C. Due Process Claims
Next, plaintiffs raise two claims under the Due Process Clause of the
Fourteenth Amendment. First, plaintiffs contend that with the amendment
of N.Y. Educ. Law § 2590, powers formerly vested in community boards
have been unlawfully transferred to the city board. As a result of this
concentration of power, plaintiffs complain, community board members and
parents have been "deprived of the power to fashion their separate
destinies." (Warden Compl. ¶ 49; see Chan Compl. ¶ 4) In order to
prevail on a deprivation of due process claim, however, a plaintiff must
prove that "state action deprived him of a protected property or liberty
interest." White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1061-62
(2d Cir. 1993). Property interests are "`created and their dimensions are
defined by existing rules or understandings that stem from an independent
source such as state law.'" Id. at 1062 (quoting Board of Regents v.
Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)).
Here, plaintiffs have not shown — nor could they show — the
requisite deprivation of a liberty or property interest. Indeed, in New
York, public officials, whether elected or appointed, have "no
contractual, vested or property right" in the office they hold. Lanza v.
Wagner, 11 N.Y.2d 317, 324, 229 N.Y.S.2d 380, 385, 183 N.E.2d 670
(1962), appeal dismissed, 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163
(1962). Rather, "[p]ublic offices are
created for the benefit of the public" and, "[a]bsent any express
constitutional limitation, the Legislature has full and unquestionable
power to abolish an office of its creation or to modify its term." Id.,
229 N.Y.S.2d at 385, 183 N.E.2d 670. A fortiori, therefore, plaintiffs do
not have a legally protected interest in a particular distribution of
power between the community boards and the city board, and plaintiffs'
first due process claim must be dismissed.
Plaintiffs' second due process claim — that the Due Process
Clause mandates a full evidentiary hearing before a community board
member can be suspended — is without merit also. Consideration of
what procedural due process requires depends on the balancing of "three
distinct factors": (1) the government's interest in the matter that will
be affected by official action; (2) the private interest involved; and
(3) "`the probable value, if any, of additional or substitute procedural
safeguards.'" Gilbert v. Homar, 520 U.S. 924, 117 S.Ct. 1807, 1812, 138
L.Ed.2d 120 (1997) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96
S.Ct. 893, 47 L.Ed.2d 18 (1976)). Here, the government's interests
— in the quality of public education and the prevention of public
school corruption — are strong. Indeed, the Supreme Court has
called education "`perhaps the most important function of state and local
governments.'" Honig v. Doe, 484 U.S. 305, 309, 108 S.Ct. 592, 98 L.Ed.2d
686 (1988) (quoting Brown v. Board of Educ., 347 U.S. 483, 493, 74 S.Ct.
686, 98 L.Ed. 873 (1954)); see also Lavelle v. Quinones, 679 F. Supp. 253,
259 (E.D.N.Y. 1988) ("[M]aintenance of public confidence in the integrity
of the administration of the schools is of concern to the entire
city."). In contrast, the personal interest of community board members is
weak. Indeed, as noted, community board members have no vested rights in
their offices at all. See, e.g., Ramos v. Cortines, 216 A.D.2d 199, 199,
628 N.Y.S.2d 662, 662 (1st Dep't 1995) (citing Matter of Roher v.
Dinkins, 32 N.Y.2d 180, 188, 344 N.Y.S.2d 841, 846, 298 N.E.2d 37
(1973), and Matter of Ocean Hill-Brownsville Governing Bd. v. Board of
Educ., 23 N.Y.2d 483, 487, 297 N.Y.S.2d 568, 571, 245 N.E.2d 219
(1969)); see also Peel v. Crew, No. 96 CIV. 7154 (RWS), 1996 WL 719378,
at *11 (S.D.N.Y. Dec. 13, 1996).
In view of these competing interests, the process afforded to community
board members under current law is more than adequate. Before suspension
or removal of a community board member, N.Y. Educ. Law § 2590-l.1(b)
mandates "conciliation"; and immediately after suspension or removal, a
community board member is entitled to appeal to the city board. See id.
§ 2590-l.2.*fn5 Further, if the removed or suspended community board
member is dissatisfied with the actions of the city board, he may seek
judicial review of the city board's determination in a state court
proceeding. See, e.g., In the Matter of Community Sch. Bd. Nine v. Crew,
224 A.D.2d 8, 648 N.Y.S.2d 81 (1st Dep't 1996); cf. McLaughlin v.
D'Elia, 115 A.D.2d 595, 596, 496 N.Y.S.2d 257, 258 (2d Dep't 1985)
(discussing an alternative administrative review process for matters
outside the purview of the city board). In short, community board members
receive more than the process they are due.*fn6
D. First Amendment Claim
Plaintiffs next allege that N.Y. Educ Law § 2590-l violates the
First Amendment, on the ground that it prohibits community board members
from making recommendations with respect to the hiring of supervisory
personnel. (See Warden Compl. ¶¶ 78, 93-95) The relevant provision of
the statute, subsection 2-a, reads: "A member of a community school
district board may be removed upon a finding that the member willfully,
intentionally or knowingly interfered with or was involved in the
hiring, appointment or assignment of employees other than as specifically
authorized in this article." N Y Educ. Law § 2590-l.2-a. Plaintiffs
contend that this prospective restriction is unconstitutionally overbroad
and vague and impermissibly regulates speech on the basis of its
content. (See Warden Pl. Mem. in Opp'n to Mun. Def. at 32-33) I
To begin, it is important to note that, on its face, N.Y. Educ. Law
§ 2590-l.2-a does not specifically prohibit recommendations with
respect to the hiring of personnel. To the contrary; the statute
prohibits "interfer[ing] with" or being "involved in" the hiring,
appointment or assignment of certain personnel. The First Amendment does
not confer rights on community board members to participate in the hiring
of school personnel; such rights, if they can be called that, are the
creatures of statute and, in general, do not implicate the First
Amendment's protection of speech.
Nevertheless, N.Y. Educ. Law § 2590-l.2-a could be construed in
such a way as to burden the speech of community board members — for
instance, by hindering them from publicly criticizing the hiring of a
particular teacher or school administrator. Thus, First Amendment analysis
is warranted. See, e.g., Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct.
1684, 75 L.Ed.2d 708 (1983) ("[A] public employee does not relinquish
First Amendment rights to comment on matters of public interest by virtue
of government employment.") (citing Pickering v. Board of Educ.,
391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). To the extent that
such analysis is called for, the crucial issue is whether the regulation
is content-based or content neutral. A content-based regulation is
subject to strict scrutiny, whereas a content-neutral law must pass a
"less rigorous examination." Eclipse Enter., Inc. v. Gulotta, 134 F.3d 63,
66 (2d Cir. 1997).
In the present cases, the statute at issue is content-neutral. N Y
Educ. Law § 2590-l.2-a prohibits interference with the hiring process
of certain school personnel irrespective of whether a community board
member is seeking to support a candidate or oppose him, and without
reference to the reasons for the community board member's position. The
statute is "neutral — indeed it is silent — concerning any
speaker's point of view." Taxpayers for Vincent, 466 U.S. at 804, 104
S.Ct. 2118; see also Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643,
114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ("[L]aws that confer benefits or
impose burdens on speech without reference to the ideas or views
expressed are in most instances content neutral."). Accordingly, the
statute need not pass strict scrutiny.
Under the test set forth in United States v. O'Brien, 391 U.S. 367, 88
S.Ct. 1673, 20 L.Ed.2d 672 (1968), a content-neutral speech-restricting
statute is justified
if it is within the constitutional power of the
Government;  if it furthers an important or
substantial governmental interest;  if the
governmental interest is unrelated to the suppression
of free expression; and  if the incidental
restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that
Id. at 377, 88 S.Ct. 1673; see Able v. United States, 88 F.3d 1280,
1295-96 (2d Cir. 1996). Here, there is no dispute that the restriction on
community board members' participation in hiring is within the
constitutional power of the government. Nor is there any real dispute
that the regulation furthers an important or substantial governmental
interest, namely, the prevention of community board corruption. Further,
my prior finding that the regulation at issue is content-neutral itself
satisfies the third O'Brien element. See
Able, 88 F.3d at 1295. The sole question, therefore, is whether the
incidental restriction on speech is greater than is essential to the
furtherance of the government's interest. The fact that N.Y. Educ. Law
§ 2590-l.2-a applies only to community board members and not to the
public at large, combined with the fact that the statute appears to
regulate speech only incidentally if at all, leads me to conclude that it
is not. Cf. Connick, 461 U.S. at 140, 103 S.Ct. 1684 (recognizing the
state's interests in regulating the speech of its employees and stating
that "[t]he problem" is "arriving "at a balance between the interests of
the [employee], as a citizen, in commenting on matters of public concern
and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees'"
(quoting Pickering, 391 U.S. at 568, 88 S.Ct. 1731)) Accordingly,
plaintiffs' claim must be rejected.
Plaintiffs' contention that N Y Educ. Law § 2590-l.2-a is
unconstitutionally overbroad and vague is without merit for substantially
the same reasons. For a statute to be unconstitutionally overbroad, its
overbreadth "must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep." Broadrick v.
Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
Similarly, a vagueness challenge should prevail "only if the enactment is
impermissibly vague in all of its applications." Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71
L.Ed.2d 362 (1982). Given my conclusion that N.Y. Educ. Law §
2590-l.2-a survives application of the O'Brien test, it is plainly not
overbroad or vague under these definitions.
E. Remaining Claims
Plaintiffs' remaining claims are all without merit, and warrant only
brief discussion. First, plaintiffs allege that N.Y. Educ. Law §
2590-l denies community boards and suspended community board members the
right to select counsel of their choice in violation of the Sixth
Amendment. (See Warden Compl. ¶ 103; Chan Compl. ¶ 39)
Specifically, plaintiffs allege that the statute requires suspended
community board members to be represented by the New York City
Corporation Counsel, despite the fact that Corporation Counsel represents
the Chancellor and the city board. (See Warden Pl. Mem. in Opp'n to Mun.
Def. at 38-39) The Sixth Amendment right to counsel, however, applies
only to "criminal prosecutions," and so it is not implicated here. U.S.
Const. amend. VI; see United States v. Coven, 662 F.2d 162, 167 (2d Cir.
1981). Further, to the extent that plaintiffs' claim could be redrafted
under any another constitutional provision — the Due Process
Clause, for example — it warrants dismissal for another reason: N Y
Educ. Law § 2590-l does not appear to restrict community board
members' choice of counsel at all.
Second, variously describing it as a "literacy test" and a "poll tax,"
plaintiffs contend that N.Y. Educ. Law § 2590-e.7(1), which requires
community board members to "participate in training to acquaint them with
the powers, functions and duties" of the job, violates the Constitution
and the Voting Rights Act. (Warden Compl. ¶¶ 97-99, 101; Warden Pl.
Mem. in Opp'n to Mun. Def. at 35-36) The training requirement, however,
is neither a literacy test nor a poll tax, but rather a reasonable
regulation designed to ensure that community board members are equipped
to do their jobs. To allege that the requirement creates "a substantial
. . . disincentive" for minorities and the poor to seek community school
board positions, as plaintiffs do (id.), is not only sheer speculation,
but also "insulting to members of those groups eager to serve on
community boards, and to do so conscientiously and competently. This
claim is without merit.
Finally, plaintiffs raise a claim of civil conspiracy against
defendants Chancellor Crew and Edward Stancik, the Special Commissioner
of Investigation for the New York City School District, appearing to
allege that the Chancellor suspended members of community boards 7 and 9
in reliance on false reports produced by Stancik. (See Warden
Compl. ¶¶ 88-90) Plaintiffs' conclusory allegations in support of this
claim, however, are insufficient to survive a Rule 12(b)(6) motion to
dismiss, let alone a summary judgment motion. Moreover, to the extent
that plaintiffs' conspiracy claim is premised on proof of their other,
substantive claims, it would necessarily fail by virtue of the fact that
those claims are all without merit.*fn7
For the foregoing reasons, the State Defendants' motions to dismiss are
granted, as are the Municipal Defendants' motions for summary judgment,
and the complaints in both 97 Civ. 7027 and 98 Civ. 2879 are dismissed.