No Lemon Violation
An “eruv” is a “demarcation of a defined geographical area within which adherents subscribing to certain interpretations of Jewish law believe that they may perform certain activities that are otherwise prohibited on the Jewish Sabbath and Yom Kippur.” In Westhampton Beach, New York, an eruv was erected by affixing inconspicuous strips, called “liches,” to utility poles to create its boundary and symbolically “enclose” the neighborhood. This brought about a federal lawsuit against Verizon New York, Inc. (“Verizon”), East End Eruv Association, Inc. (“EEEA”), and the Long Island Power Authority (“LIPA”). The plaintiffs claimed that the erection of the eruv constituted a violation of the Establishment Clause of the First Amendment to the United States Constitution.
As to Verizon and the EEEA, the complaint was quickly dismissed because neither is a “state actor.” The Establishment Clause is a check on the powers of our government. A claim cannot be made against a non-State actor, i.e., against a non-governmental person or entity, for constitutional violations. Defendant Verizon is a subsidiary of a publicly traded corporation, and EEEA is a not-for-profit corporation.
As for LIPA, however, there is no dispute that it is a political subdivision of the State of New York, and thus, a State actor. The Court analyzed the actions taken by LIPA in Westhampton under the “Lemon test.” The Lemon test, which was set forth in the 1971 Supreme Court case of Lemon v. Kurtzman, held that for governmental action to satisfy the neutral principal of the Establishment Clause, it must “(1) have a secular purpose, (2) have a principal or primary effect that neither advances nor inhibits religion, and (3) not foster an excessive governmental entanglement with religion.” Jewish People for the Betterment of Westhampton Beach v. The Village of Westhampton Beach, 2015 WL 64240 (2d Cir. 2015).
As for the first element, although plaintiffs’ complaint repeatedly states that the establishment of an eruv serves no secular purpose, there are no allegations that LIPA’s action of permitting the EEEA to attach the lechis to its utility poles was done in a non-neutral manner. It is well-settled that non-neutral accommodations of religious practices qualifies as a secular purpose under Lemon.
Second, the Court held that since the eruv consists only of inconspicuous strips affixed to LIPA’s utilities poles, no reasonable observer would perceive a message of governmental endorsement or sponsorship of religion.
Finally, the Court held that since the private parties will finance, install, and maintain the strips, there is no risk of “excessive government entanglement with religion.” Compared with other actions that have survived the Lemon test, including allowing private church groups to hold meetings at public schools, displaying nativity scenes on public property, and allowing “In God We Trust” to appear on all U.S. currency, the Court concluded that the actions of LIPA cannot be deemed to be an unconstitutional establishment of religion.
Teachers Received Due Process
In a decision by the United States District Court for the Eastern District of New York, a complaint brought by seven New York City school teachers, alleging due process violations of the Federal and State Constitutions, was recently dismissed.
The seven plaintiff-teachers each alleged that their due process rights were violated when they were relieved of their duties, and told to return to work each day to “sit in a room” with nothing to do, during the pendency of their hearing on disciplinary charges. Although the teachers received their regular salaries, their salary bonuses, per session payments, pensions, and salary steps were frozen. A “red-flag” was placed next to each teacher’s name in the computer system, which allegedly prevented them from successfully finding another job as a teacher within the City Department of Education.
To raise a due process claim under the Fourteenth Amendment to the United States Constitution, a plaintiff must first establish that the challenged action infringed a constitutionally protected property or liberty interest.
With respect to plaintiffs’ property interest, it is well settled that “an employee who continues to be paid – as plaintiffs in this case indisputably were — cannot sustain a claim for deprivation of property without due process even if relieved from job duties.” As for the additional compensation which was withheld pending their hearings, the Court held that this does not rise to the level of a property right sufficient to state a federal due process claim.
With respect to plaintiff’s liberty interest, to succeed thereon, a plaintiff must allege that the government both “(1) made an utterance of a statement sufficiently derogatory to injure the plaintiffs’ reputation, that is capable of being proved false, and that the plaintiff claims is false; and (2) imposed a material burden or alteration of the plaintiff’s status or rights.” The Court rejected plaintiffs’ claim that the internal disciplinary charges or “red flag” were made “sufficiently public” so as to constitute a “stigma.” The Court recognized that although the charges against the plaintiffs may indeed have an impact on their career aspirations, it equally may have an impact on their friendships, self-esteem, or any other typical consequence of bad reputation — but that does not constitute a loss of liberty.
Finally, the Court held that the plaintiffs received all the process that they were due. “A tenured public employee is entitled to no more than oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Here, there was no dispute that those requirements were met. Plaintiffs’ Federal and State due process claims were dismissed.
Pay What You Want — But Pay
On February 5, 2015, the New York State Appellate Division affirmed the dismissal of a complaint against the Metropolitan Museum of Art (the “Museum”) over its policy which requires visitors at all times to pay an entrance fee. Under that policy, that amount of that fee is at the sole discretion of the individual patron. It can be as much as they want, or as little as one cent — but they must pay something. Currently, the “recommended fee” is twenty-five dollars. Gruenwald v. Metropolitan Museum of Art, 2015 N.Y. Slip Op. 00961 (1stDept. 2015).
The plaintiffs sought a permanent injunction seeking to enforce a free admissions requirement they allege is required by statute and by the lease between the Museum and the City, which allows the Museum to occupy its home in Central Park.
Unfortunately for the plaintiffs, the issue of whether or not such a policy violates the legislation and/or lease was never reached. The complaint was dismissed because the plaintiffs lacked standing to challenge the policy under either.
The doctrine of standing is the law’s policy to allow only an aggrieved person to bring a lawsuit. The courts only have jurisdiction over actual controversies, and a plaintiff found to “lack standing” is one who is not engaged in the requisite controversy with the defendant for the court to maintain jurisdiction over the suit.
With respect to the legislative challenge, there exists a 1893 statute which authorizes the Department of Public Parks in the City of New York to apply for an additional $70,000 to keep, preserve and exhibit the collections in the Museum, free of charge for five days per week. Here, however, the plaintiffs were not challenging the Parks Department application for the additional funding, nor were they challenging the receipt of funds. Instead, they sought to enforce the condition premised upon the receipt of those funds. The Court held that “no private remedy to enforce only the conditional portion of the statute if fairly implied.” Thus, plaintiffs lacked standing.
With respect to the plaintiffs’ challenge under the Museum’s lease with the City, the plaintiffs, as non-parties to the contract, would only have standing if they were deemed to be “third party beneficiaries” to that contract. In order to be deemed such, the benefit conferred upon plaintiffs under that contract must be “direct,” and not “incidental.” A “direct” benefit “must be primary and immediate in such a sense and to such a degree as to demonstrate the assumption of a duty to provide a direct remedy to the individual members of the public if the benefit is lost.” The Court held that “[n]either the language of the lease nor any other circumstance indicate that the parties intended to give these plaintiffs individually enforceable rights thereunder.” Being members of the public at large was not sufficient to confer third party beneficiary status under the lease.
As a result, the complaint against the Museum was dismissed, and the Museum’s “pay what you want, but pay something” policy continues.