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Incantalupo v. Lawrence Union Free School District Number 15

August 24, 2009

TARA INCANTALUPO, STEPHEN JACKSON, ANDREW LEVEY, STACEY SULLIVAN, AND FU-YUN TANG, PLAINTIFFS,
v.
LAWRENCE UNION FREE SCHOOL DISTRICT NUMBER 15, THE BOARD OF EDUCATION OF THE LAWRENCE UNION FREE SCHOOL DISTRICT NUMBER 15, MURRAY FORMAN, DAVID SUSSMAN, URI KAUFMAN, ASHER MANSDORF, MICHAEL HATTEN, SOLOMON BLISKO, AND NAHUM MARCUS, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND DECISION

Plaintiffs Tara Incantalupo, Stephen Jackson, Andrew Levey, Stacey Sullivan and Fu-Yun Tag ("Plaintiffs") have filed suit against Murray Forman, David Sussman, Uri Kaufman, Asher Mansdorf, Michael Hatten, Solomon Blisko and Nahum Marcus (collectively, "the Individual Defendants") and the Lawrence Union Free School District Number 15 and the Board of Education of the Lawrence Union Free School District Number 15 (collectively, "Lawrence Defendants"), alleging violations of their First and Fourteenth Amendment Rights. Plaintiffs have also moved for a preliminary injunction to enjoin a "Consolidation Plan" that Defendants seek to implement this September. Defendants oppose Plaintiffs' preliminary injunction motion and, instead, demand that the case be dismissed.

For the foregoing reasons, Plaintiffs' motion for a preliminary injunction is DENIED and Plaintiffs' Complaint is DISMISSED.

BACKGROUND*fn1

Plaintiffs are residents of the Lawrence Union Free School District and the parents of children who attend the district's public schools. Compl. ¶¶ 4-13. The Individual Defendants are current and former members of Lawrence's Board of Education ("the School Board") who support the Consolidation Plan that Plaintiffs oppose. Id. ¶¶ 16-21.

The Lawrence Union Free School District ("Lawrence") is a school district within Nassau County, New York, serving the Village of Lawrence and much of the surrounding "Five Towns" area. Id. ¶ 22. At one time, Lawrence had a demographically diverse population, and was known for its superior public schools. Id. ¶¶ 23-24.

Beginning in the 1980s, Lawrence's demographic balance began to shift due to a substantial influx of Orthodox Jews. Compl. ¶¶ 24-25. Orthodox Judaism is a form of Judaism that demands adherence to the Hebrew Bible's commandments. Id. ¶ 28.*fn2

Orthodox Jews' religious beliefs manifest themselves in their adherents' diets, wardrobes, grooming habits, and their large nuclear families. Id. ¶ 29.*fn3 As a result, Orthodox Judaism "oftentimes represents more than just a religion . . . it is a culture and lifestyle as well." Id. ¶ 30. Thus, Orthodox Jewish communities constitute "separate cultural, ethnic, political, and socio-economic groups" from society-at-large, and "possess their own shared values, beliefs, interests, and political agendas, which are taught onto future generations." Id. ¶ 30.*fn4

Because Orthodox Jews want to pass their religious heritage onto their children, they primarily tend to educate their children in private seminaries, known as "yeshivas." Id. ¶ 31. The yeshiva system replaces the public education "to which Orthodox children, like all children, are otherwise entitled." Id. ¶ 31. Orthodox Jews "who possess the requisite financial means are expected to send their children to yeshivas," where they study both secular (e.g., math, English) and parochial subjects. Id. ¶ 32.

In Lawrence, the yeshiva system "has helped to create a community that is insular and isolated from its surrounding communities." Id. ¶ 33. Indeed, due to the Orthodox Jewish community's size and preference for yeshiva education, the majority of Lawrence's children currently attend private schools, mostly yeshivas. Id. ¶ 35.

Orthodox Jewish values sometimes "manifest in the form of political ideologies (and corresponding political agendas)." Id. ¶ 34. Through bloc-voting, Orthodox Jewish communities mobilize "to support public policies that favor Orthodox interests." Id. ¶ 34. Thus, in Lawrence, Orthodox Judaism operates as a "de facto political affiliation." Id. ¶ 34.

Around 2000 or 2001, Lawrence's Orthodox community began to assert itself politically. Id. ¶ 38. At this time, the Lawrence School District Superintendent announced that Lawrence had spent all its cash reserves, and that the school system needed a tax increase to sustain its operating budget. Id. 40. Because the Orthodox community pays taxes to support public schools while receiving little benefit from them (as they principally educate their children in yeshivas), the Orthodox community mobilized to limit their taxes and defeat the school district's operating budget. Id. ¶¶ 38-40. This campaign succeeded, and Lawrence was forced to adopt a contingency budget that limited school spending. Id. ¶ 42. Every year following, until 2006, Lawrence proposed increasing school spending, and each time the Orthodox community mobilized to defeat it. Id. ¶¶ 46-47. Voting statistics show that Lawrence's heavily Orthodox areas opposed the larger school budgets, while secular neighborhoods favored them. Id. ¶ 47.

Although operating on a smaller budget, New York State law required Lawrence to provide busing to students who went to parochial schools. Id. ¶ 49. The need to bus approximately 4,000 students to private schools, sometimes located far away from Lawrence, caused Lawrence's transportation budget to balloon to over $7,000,000. Id. ¶ 50.

Due to smaller school budgets, Lawrence's public schools declined in quality. Id. ¶¶ 48, 51. Test scores fell, Lawrence's reputation diminished, and Lawrence was placed on New York's educational watch-list for underperforming school districts. Id. ¶ 51. Despite these falling scores, the Orthodox community continued to oppose giving Lawrence "free reign" to spend. Id. ¶ 55. Plaintiffs plead that the Orthodox did so because they feared "depleting the funding available for Orthodox interests, especially yeshiva tuition payments." Id. ¶ 55. This particular conclusory allegation is not accepted as true. Plaintiffs nowhere allege that any public money went to "Orthodox interests," much less "yeshiva tuition payments" specifically. Rather, what Plaintiffs appear to actually mean by "depleting the funding available for Orthodox interests" is that Orthodox Jews opposed higher taxes, in part because they believed that higher taxes would impair their ability to afford yeshiva tuition.

In 2006, Defendants Kaufman, Hatten, Mansdorf, and Blisko won election to Lawrence's School Board. Id. ¶¶ 41, 46, 58. Each of these defendants are Orthodox Jews who educate their children in yeshivas, not public schools. Id. Their election thus created an "Orthodox Majority" on Lawrence's School Board. Id. ¶ 63. The Orthodox community heavily supported Kaufman and Hatten's campaigns, particularly after they campaigned on a platform of enhancing services to private schools while lowering taxes. Id. ¶ 59. During the campaign, Kaufman, Hatten, Mansdorf, and Blisko all supported providing free transportation services to pre-kindergarten private school students while having the "temerity" to support a "0% tax increase." Id. ¶ 60.

Plaintiffs allege that this platform "was designed to convert [Lawrence's Board of Education] . . . into a proxy for the Orthodox shuls in the Five Towns area." Id. ¶ 62. Similarly, Plaintiffs allege that the "Orthodox Majority," in general, has sought to "convert the public [School Board] into an Orthodox ruling committee, and to establish Orthodox Judaism as the official religion" of Lawrence. Again, these conclusory allegations are not accepted as true. Plaintiffs make no factual allegations suggesting that "Orthodox shuls" somehow controlled the School Board, that the School Board provided public money to "shuls," that the School Board served as any kind of Jewish religious court or ruling body, or that the School Board imposed sectarian religious rules favored by Orthodox Judaism.

Shortly after winning election, Defendants Kaufman, Hatten, Mansdorf, and Blisko rallied against a proposed new collective bargaining agreement with the teacher's union, which provided for a small increase in teacher salary and set forth maximum student enrollment in classrooms. Id. ¶¶ 65, 70. In particular, the "Orthodox Majority" feared that the student cap could limit their ability to save money by closing schools and increasing the number of children in each class. Id. ¶ 71.

Defendants Kaufman, Hatten, Mansdorf, and Blisko also facilitated a public referendum on whether Lawrence should fund pre-kindergarten busing to private school students. Id. ¶ 72. This referendum included a patchwork of new rules designed so that only yeshivas would be eligible for the free busing. Id. ¶ 75. As a result, when the busing plan was implemented, numerous yeshivas became eligible for pre-kindergarten busing, while other private schools were not. Id. ¶ 76. The New York State Education Department subsequently overturned this busing scheme, and Lawrence lost an Article 78 proceeding in the New York State Supreme Court attempting to get the scheme reinstated. Id. ¶¶ 78-79. In addition to the busing scheme, these Defendants took other measures that supposedly benefitted Orthodox Jews, such as not charging community groups for accessing public fields and facilities. Id. ¶ 80.

In July 2006, these Defendants changed the terms of a forthcoming referendum on the sale of public school. Previously, the referendum sought to ask if the funds earned from the sale should go to fund capital repairs and improvements throughout the school system. Id. ¶ 82. But the "Orthodox Majority" dropped this proposition from the referendum, because they wanted to dedicate the money for a "tax-relief reserve fund" that would "curb tax increases and/or sponsor rebates." Id. ¶ 84. Consistent with these efforts, the proceeds from selling the school were, in fact, used to sponsor tax breaks. Id. ¶ 85. Plaintiffs allege that these tax breaks helped "sponsor Orthodox interests, especially yeshiva tuition." Id. ¶ 85. Once again, this conclusory allegation is not accepted as true. Plaintiffs plead no facts suggesting that Lawrence issued any tax breaks for "yeshiva tuition" or other "Orthodox interests." Id. ¶ 85. Rather, more accurately stated, Plaintiffs appear to allege that the tax breaks gave Lawrence residents more disposable income, which some Orthodox residents then used to help afford yeshiva tuition. Id. ¶ 86.

Also in July 2006, the "Orthodox Majority" engineered a plan for "state-subsidization of Orthodox special education" at a private yeshiva known as Kulanu that caters to special needs children. Id. ¶¶ 87-88. Many Orthodox Jews who have special needs children wished to send them to Kulanu. Id. ¶¶ 88-89. During the early-to--mid 2000s, these parents filed many petitions requesting to opt-out of the public special education system and have Lawrence instead pay for Kulanu's tuition. Id. ¶¶ 89-91. These petitions were uniformly rejected, because Kulanu was "an uncertified school" and "not the best or proper forum for provision of special education services." Id. ¶ 91. But, once on the School Board, the "Orthodox Majority" arranged for a "settlement" with the Kulanu petitioners, enabling them to obtain partial tuition subsidies for Kulanu. Id. ¶¶ 93, 94. Plaintiffs allege that the Kulanu "settlement" was a pretext designed to conceal an unlawful subsidization of parochial education. Id. ¶ 97. Plaintiffs do not, however, assert any claims concerning the Kulanu subsidies. They "merely use the 'Kulanu' issue" to provide "context" to their claims. Pl. Reply Br. at 15.

Rather, what is before the Court is the School Board's "Consolidation Plan." The genesis of this plan took place in 2007. Compl. ¶ 103. By this time, the "Orthodox Majority" had been augmented by the election of Defendants Marcus and Sussman. Marcus is an ordained Orthodox Rabbi who sends his children to yeshivas.

Id. ¶ 99. Sussman is not an Orthodox Jew, but allegedly "cater[s]" to Orthodox interests and is a "trusted confidant" of the School Board's other Orthodox Jews. Compl. ¶ 101.

According to Plaintiffs, the School Board retained Stanton Leggett & Associates, a renowned consulting firm, to study consolidation options for Lawrence's schools. Id. ¶ 104. Plaintiffs allege that the School Board hired Stanton Leggett to "justify their (pre-determined) decision" to close the Number 6 School. Id. ¶ 105. The Number 6 School is both the largest and newest elementary school in the District. Id. ¶ 106. It is the only elementary school with large, grass athletic fields, a stand-alone gymnasium and auditorium, and handicap-accessibility. Id. ¶ 106.*fn5 The Number 6 School's size, facilities and location renders the school particularly valuable for resale. Id. ¶ 107. Thus, according to Plaintiffs, the Defendants sought to sell or rent it so that they could "funnel tax dollars from public schools to private religious interests" through a "flat tax and/or tax rebates." Id. ¶ 108. Once again, the Court does not accept as true Plaintiff's unsupported conclusory allegation that the Defendants sought to "funnel tax dollars . . . to private religious interests." Rather, what Plaintiffs appear to be alleging is that Defendants sought to reduce the tax burden on all Lawrence residents, and that these lower taxes would help those Lawrence residents who are Orthodox Jews finance Jewish education for their children. Plaintiffs also claim that the Defendants ultimately seek to sell or lease School Number 6 to a yeshiva. Id. ¶ 109. Plaintiffs claim that such a sale or lease would have a "multiplier" effect on Lawrence by attracting more Orthodox families to the area, thereby increasing the Orthodox community's religious and political base. Id. ¶ 110.

In February 2008, Stanton Leggett issued its report, which allegedly recommended against implementing the Consolidation Plan. Id. ¶ 113. Despite this report, the Defendants pressed forward with the Consolidation Plan which, among other things would move fifth graders to a middle school that presently houses the sixth through eighth grades. Id. ¶¶ 114-116. Defendants did so even though the Stanton Leggett Report indicated that such a move would cause ...


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