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Incantalupo v. Lawrence Union Free School District Number 15

June 10, 2010


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


Pending before the Court is Defendants' motion for attorneys' fees and costs against Plaintiffs (under 42 U.S.C. § 1988) and Plaintiffs' former counsel Robert M. Agostisi, Esq. (under 28 U.S.C. § 1927). For the foregoing reasons, Defendants' motion is GRANTED IN PART DENIED IN PART. The Court awards Defendants $5,000, to be assessed equally against Plaintiffs and Mr. Agostisi.


On August 4, 2009, Plaintiffs sued the Board of Education of the Lawrence Union Free School District ("the School Board"), the Lawrence Union Free School District Number 15, (collectively, "the Lawrence Defendants"), and various current and former members of the School Board (collectively, "the Individual Defendants"), alleging that Defendants' plan to close a Lawrence school and use the money to cut taxes ("the Consolidation Plan") somehow turned the School Board "into an Orthodox [Jewish] ruling committee" and "establish[ed] Orthodox Judaism as the official religion" of Lawrence. Compl. ¶ 98. Along with filing their Complaint, Plaintiffs also moved for a temporary restraining order and a preliminary injunction against the Consolidation Plan. The Court immediately denied Plaintiffs' request for a temporary restraining order. Then, on August 24, 2009, the Court denied Plaintiffs' request for a preliminary injunction and dismissed Plaintiffs' Complaint as frivolous. See Incantalupo v. Lawrence, 652 F. Supp. 2d 314 (E.D.N.Y. 2009).

Specifically, the Court found that Plaintiffs failed to plead a First or Fourteenth Amendment violation because, based on Plaintiffs' own pleadings, "the Consolidation Plan has an indisputable secular purpose (reducing spending and lowering taxes), has no 'principal or primary effect' that endorses Orthodox Judaism, does not remotely entangle state and religion, and does not discriminate on the basis of religion." Id. at 331. On the contrary, the Court noted that "Plaintiffs' Complaint, on its clear face, seeks to create, not cure, First Amendment and Equal Protection violations" because it seeks to "deny Orthodox Jews political rights possessed by every other group in the United States: the right to mobilize in support of religiously neutral government policies, and then have those policies enacted through normal democratic processes." Id. at 324. Indeed, the Court commented that, because "lower taxes and school spending are not unconstitutional by themselves," the Plaintiffs effectively ask the "Court to discriminate against Orthodox Jews" by finding that Lawrence cannot enact "religiously neutral government actions" that are "motivated by the Jewish faith, instead of anti-tax sentiment generally." Id. at 325.

On September 2, 2009, Defendants filed this motion. On September 22, 2009, Plaintiffs appealed the Court's decision denying a preliminary injunction and dismissing this case. On June 7, 2010, the Second Circuit denied Plaintiffs' appeal ("Slip Op."). See __ Fed. Appx. __, 2010 U.S. App. LEXIS 11577.


I. 42 U.S.C. § 1988 Motion

"In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

42 U.S.C. § 1988. A defendant is a "prevailing party" if the plaintiff's claim "was frivolous, unreasonable, or groundless" or "the plaintiff continued to litigate after it clearly became so." Panetta v. Crowley, 460 F.3d 388, 399 (2d Cir. 2006) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S.Ct. 694, 54 L.Ed. 2d 648 (1978)). The defendant "need not show bad faith by a plaintiff to be entitled to attorneys' fees," but "such a showing provides 'an even stronger basis' for the award." Id.

Here, Defendants seek attorneys' fees based principally on the grounds that Plaintiffs' Complaint was frivolous. In addition, Defendants ask the Court to sanction Plaintiffs for the "stereotypical and harassing" allegations that Plaintiffs included in their Complaint, which Defendants contend "cast the Lawrence area Orthodox Community as a community of aliens, separate and apart from broader society." Def. Br. at 5. In opposing Defendants' attorneys' fees motion, Plaintiffs raise numerous arguments. Roughly speaking, these arguments can be grouped into roughly three categories: (1) the Complaint is not frivolous because it pled "plausible" factual allegations; (2) the Complaint's legal theories are not frivolous; and (3) the Complaint's allegations about Orthodox Jewish practices served a valid purpose, and were neither stereotypical nor harassing. The Court addresses each of these arguments in turn.

A. The Factual "Plausibility" Of Plaintiffs' Allegations Is Irrelevant

First, Plaintiffs argue that their claims are not frivolous because their factual contentions, such as Orthodox Jews favoring lower taxes and public school spending and voting as a bloc to support these goals, are "plausible." Pl. Opp. Br. at 9-12. But Plaintiffs misstate the inquiry. The issue is not whether Plaintiffs' factual contentions are "plausible." It is whether those contentions, if true, state Constitutional violations.*fn1

Manifestly, they do not. Contrary to Plaintiffs' belief, there is nothing unconstitutional about Orthodox Jews favoring lower taxes instead of higher government spending on public schools. And bloc voting, far from being a Constitutional violation, is a protected Constitutional right.

For this reason, Plaintiffs' reliance on the CURE Study is irrelevant. Indeed, if anything, the CURE Study evidences how frivolous Plaintiffs' arguments are. For instance, Plaintiffs appear to use the CURE Study to support their conclusory allegation that cutting (or not raising) taxes somehow "divert[s]" or "funnel[s]" "public money to private religious causes." Compl. ¶¶ 86, 108-11; Pl. Opp. Br. 11. But, while it is true that the CURE Study uses the term "siphoning" to describe Lawrence's budget practices, it does not do so in the context of tax cuts. (p. 18). Instead, the CURE Study uses the phrase to criticize Lawrence for spending money on services for private school students (such as busing, textbooks and special education); expenditures that the CURE Study acknowledges are not only legal, but required under New York law. (pp. 33, 36). It is accurate, if pejorative, to describe such spending as the "siphoning" or "diverting" of public money to private schools. It is wholly inaccurate to use that same terminology to describe tax cuts. Contrary to Plaintiffs' apparent belief, Lawrence's School Board does not have a claim to every dollar Lawrence residents might earn in the future. Money that taxpayers have not yet earned, much less paid in taxes, is not "public money" that can be "diverted." It is money that can become either public or private, depending on the choices Lawrence's citizens make through their elected representatives.

B. Plaintiffs' Legal Theories Were Frivolous 1. The Lemon Test's "Secular Purpose" Prong

In opposing Defendants' attorneys' fees motion Plaintiffs argue that the Complaint pled sufficient factual allegations to show that the Consolidation Plan's professed secular purpose (cutting taxes and reducing spending) was a sham. Specifically, Plaintiffs argue that they properly alleged a sham because: (1) Lawrence residents had long complained about the School Board's "Orthodox Majority" making decisions to benefit yeshiva students over public school students; (2) local rabbis supported the School Board Members' election campaigns, and backed their proposals to improve special education services for yeshiva students; and (3) Defendant Uri Kaufman referenced benefits the Board had provided to "frum" (i.e., Orthodox Jewish) families. Plaintiffs argue that these allegations, taken collectively and in "context,"*fn2 demonstrate that the Consolidation Plan's true purpose was helping families afford yeshiva tuition.

As an initial matter, the Court notes that Plaintiffs never made this argument prior to the ...

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