THOMAS P. GRIESA, District Judge.
Plaintiff, Uriel Levi, individually and as father and natural guardian of Elisheva Levi, an infant, brings this civil action under 42 U.S.C. § 1983 against the following defendants: (1) the State of New York, (2) the New York State Assembly and New York State Senate, and (3) the following state legislators- Sheldon Silver, Speaker of the New York State Assembly, and Chair of the Assembly Rules Committee; Dean G. Skelos, President Pro Tempore of The New York State Senate, Chair of the Senate Republican Conference Committee, and Chair of the Senate Rules Committee; and Jeffrey D. Klein, President Pro Tempore of the New York State Senate, and Chair of the Senate Independent Democrat Conference. Levi alleges that defendants violated his as well his daughter's constitutional rights by failing to include private schools within the coverage of Project SAVE ("Safe Schools Against Violence in Education")-a set of laws passed to protect public school students from sexual abuse by public school employees. Levi seeks declaratory and injunctive relief, requiring defendants to extend Project SAVE to private schools.
The defendants move to dismiss the complaint. The motion to dismiss is granted on the basis that defendants are protected by sovereign and legislative immunity.
The following facts are drawn from the complaint and assumed to be true for purposes of the motion.
Levi is an Orthodox Jew and his daughter-Elisheva Levi-attends a private, Modern-Orthodox Jewish school located in Nassau County, New York. Levi alleges that there have been repeated instances of child abuse in private schools, especially religious schools, and that school officials are not taking sufficient steps to protect the students. In particular, Levi alleges that the Ultra-Orthodox Jews, rather than the Modern-Orthodox Jews, have worked to prevent government legislation that would reform private school practices to prevent child abuse.
In 2001, the New York State Assembly and Senate considered Project SAVE. The bill mandated that New York public schools: (1) conduct fingerprinting and criminal history background checks for all public school job applicants throughout New York, (2) report to law enforcement all instances of abuse committed by public school employees upon public school students, (3) end secret agreement policies, or "silent resignations", whereby public schools agree not to report to law enforcement those public school employees accused of abuse so long as the employees resign, and (4) require school safety plans.
When considering Project SAVE, legislators consulted with private school officials. The legislators sought the school officials' opinion as to whether Project SAVE should also cover private schools. In particular, Levi alleges that the Legislature consulted with private school officials at religious schools- namely, Catholic and Ultra-Orthodox Jewish institutions. Levi alleges that these school officials, without consulting with the parents of their school children, advised the legislators that they did not want the bill to cover the religious schools.
The New York State Legislature passed Project SAVE and the Governor signed it into law. The legislation did not include private schools in its coverage.
Through their failure to extend the Project SAVE legislation to include religious schools, defendants, according to Levi, have violated his as well as his daughter's constitutional rights.
First, Levi alleges that defendants have denied both him and his daughter their right to equal protection of the law under the Fourteenth Amendment. Namely, by having to attend a school where the teachers are not subject to background checks, Levi's daughter does not have the same protection and security as students in public schools.
Second, Levi claims that the defendants have infringed upon the liberty clause of the Fourteenth Amendment. In exempting religious schools from Project SAVE, the defendants, according to Levi, have constructively abrogated the constitutional right of children to attend religious schools and the rights of parents to send their children to religious schools because the schools cannot ensure the students' safety.
Third, Levi alleges that defendants have infringed upon his as well his daughter's First Amendment right to freely exercise their religion. The defendants, through failing to include religious schools in Project SAVE, have created an unsafe educational environment for students, like Levi's daughter Elisheva, that threatens both children's right to practice their religion and impairs the parents' right to send their children to religious school.
Fourth, Levi claims that defendants have violated the Establishment Clause of the First Amendment. Specifically, by declining to extend Project SAVE to private schools, the Legislature prioritized the values of the Ultra-Orthodox, who were strongly against the legislation, as opposed to the Modern-Orthodox Jews, like the plaintiff who had had a less-defined position on the legislation. As a ...