Wachter et al v. James et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
KERRY WACHTER, et al.,
Plaintiffs,
v.
LETITIA JAMES, et al.,
Defendants.
1:25-cv-01718 (AMN/CBF)
APPEARANCES: 	OF COUNSEL:
SOUTHEASTERN LEGAL FOUNDATION 	JAMES V. F. DICKEY, ESQ.
560 W Crossville Road – Suite 104 	JORDAN MILLER, ESQ.
Roswell, Georgia 30075
Attorneys for Plaintiffs
NEW YORK STATE ATTORNEY GENERAL 	AIMEE COWAN, ESQ.
300 South State Street – Suite 300
Syracuse, New York 13202
The Capitol 	RACHEL FINN, ESQ.
Albany, New York 12224
28 Liberty Street 	RICK SAWYER, ESQ.
New York, New York 10005
Attorneys for Defendants
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
On December 9, 2025, Kerry Wachter and Danielle Ciampino (together, “School Board
Plaintiffs”) 	and 	Sarah 	Rouse 	and 	Issac 	Kuo 	(together, 	“Parent 	Plaintiffs”) 	(collectively,
“Plaintiffs”) commenced this action against Letitia James, in her official capacity as Attorney
General for the State of New York; Betty Rosa, in her official capacity as Commissioner of
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Education for the State of New York (“Commissioner”); Lester W. Young, Jr., in his official
capacity as Chancellor of the New York State Board of Regents; Judith Chin, in her official
capacity as Vice Chancellor of the New York State Board of Regents; and Roger Tilles, Christine
Cea, Wade Norwood, Susan Mittler, Frances Wills, Aramina Vega Ferrer, Shino Tanikawa, Roger
Catania, Adrian Hale, Hasoni Pratts, Patrick Mannion, Seema Rivera, Brian Krist, Keith Wiley,
and Felicia Thomas-Williams, in their official capacities as members of the New York State Board
of Regents. 	Dkt. No. 1 (“Complaint”). 	On January 9, 2026, Plaintiffs filed a motion for a
preliminary injunction seeking an order that preliminarily enjoins Defendants from enforcing the
letter entitled, “Joint Guidance on Harassment and Bullying at School Board Meetings,” dated
May 8, 2025 (“Guidance Letter”). Dkt. No. 12 (“Motion”). On February 20, 2026, Defendants
opposed the Motion and cross-moved to dismiss the Complaint for failure to state a claim. Dkt.
No. 20 (“Cross-Motion”).
For the reasons set forth below, the Court denies Plaintiffs’ Motion and grants Defendants’
Cross-Motion.
II. 	BACKGROUND
A. The Parties
Kerry Wachter resides in Nassau County, New York and currently serves as the president
of the Massapequa Union Free School District Board of Education. Dkt. No. 1 at ¶ 14. Danielle
Ciampino resides in Schenectady County, New York and is an elected member of the Rotterdam-
Mohonasen Central School District Board of Education. Id. at ¶ 15. Both Wachter and Ciampino
are also parents to students in their respective school districts. Id. at ¶¶ 14-15.
Sarah Rouse and Issac Kuo are residents of Nassau County, New York, within the
Rockville Centre Union Free School District. Id. at ¶¶ 16-17. Both are parents of students who
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attend Rockville Centre schools. Id.
Defendants are Attorney General Letitia James and Commissioner of Education Betty
Rosa, who together co-authored the Guidance Letter, as well as members of the New York State
Board of Regents, including Chancellor Lester W. Young, Jr. and Vice Chancellor Judith Chin.
Id. at ¶¶ 18-20; see also supra Section I. All Defendants are sued in their official capacities. Dkt.
No. 1 at ¶¶ 18-20.
B. Plaintiffs’ Allegations
On May 8, 2025, Defendants James and Rosa issued the Guidance Letter, which is a “Dear
Colleague” letter that provides guidance to members of local boards of education, including the
School Board Plaintiffs, concerning conduct at public school board meetings and particularly the
public comment portions of those meetings. 	Id. at ¶¶ 37, 39; see also Dkt. No. 1-1. All school
districts in which Plaintiffs reside permit public comment during school board meetings. Dkt. No.
1 at ¶ 35.
The Guidance Letter begins by noting that “some board members have made, and
encouraged, comments during board meetings that demean and stigmatize LGBTQ+ students,”
which “included attacks on school support for LGBTQ+ student groups and on transgender and
gender-expansive students’ rights to use facilities . . . or participate on school athletic teams
consistent with their gender identity—rights that remain firmly embedded in state law.” Dkt. No.
1-1 at 2 1 (citing, inter alia, N.Y. Exec. Law § 296(4) (prohibiting public schools from denying the
use of facilities, including restrooms and locker rooms, to any person on the basis of sex, gender
identity or gender expression); N.Y. Educ. Law § 12(1) (prohibiting discrimination based on a
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
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student’s actual or perceived sex or gender on public-school property and at school functions);
N.Y. Educ. Law § 3201-a (prohibiting discrimination based on sex, including gender identity and
expression, with respect to inclusion on public schools’ athletic teams)). 	At the outset, the
Guidance Letter “remind[s] boards of education of their obligation to adhere to state laws and
regulations that safeguard students from harassment, bullying, and the disclosure of protected
student information.” Id. at 3.
The Guidance Letter is then divided into three sections. The first section “discusses board
members’ duty to ensure that board meetings are conducted in a manner that respects the dignity
and rights of all students” and “provides resources to assist board members in sustaining a safe
and supportive learning environment for LGBTQ+ students in their districts.” 	Id. at 3-4. 	For
example, the Guidance Letter notes that board members who “knowingly undermine the purpose
of the [Dignity for All Students Act (“DASA”)] by making or promoting discriminatory and
harassing comments willfully neglect their duties to ‘engage in constructive discussion’ and ensure
effective functioning of board operations” and “sends a message to LGBTQ+ students that their
dignity, safety, and wellbeing are not valued in their school community, contrary to [DASA’s]
requirements and purpose.” Id. at 5-6 (citing, inter alia, N.Y. Educ. Law §§ 10, 12). The second
section “surveys legal protections that may be violated by board member conduct that permits or
creates a hostile learning environment for transgender and other LGBTQ+ students.” Id. at 4. For
example, the Guidance Letter states that “[c]onduct that denies LGBTQ+ students equal protection
of the law or otherwise subjects them to ‘any discrimination in their civil rights’ on the basis of
these or other protected characteristics violates the New York State Constitution and Civil Rights
Law.” Id. at 6-7 (citing N.Y. Const. art. I, § 11(a); N.Y. Civ. Rts. Law § 40-c). The Guidance
Letter further states that “[b]oards of education that permit harassing and stigmatizing comments
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about LGBTQ+ students in public meetings may expose districts to liability under [the New York
State Human Rights Law].” Id. at 7 (noting that the New York State Legislature amended the New
York State Human Rights Law in 2019 to ensure that it would “be construed liberally” (citing N.Y.
Exec. Law § 300; Cooper v. Franklin Templeton Invs., No. 22-cv-2763, 2023 WL 3882977, at *3
(2d Cir. June 8, 2023)). 	The final section “reminds board members that they may be removed
from office when they willfully neglect their duty or violate legal protections for students in their
districts.” Id. at 4. Specifically, the Guidance Letter states that “[b]oard members may be removed
by the Commissioner of Education if they: (1) violate the Education Law or another law ‘pertaining
to public schools,’ including the state Human Rights Law; (2) willfully neglect their duties as
public officers; or (3) willfully disobey a ‘decision, order, rule or regulation’ of the Regents or the
Commissioner of Education.” Id. at 7-8 (citing, inter alia, N.Y. Educ. Law § 306(1); N.Y. Exec.
Law § 296(4)). Additionally, the Guidance Letter notes that “[w]illfully permitting the harassment
of students on the basis of sex, sexual orientation, gender identity, gender expression, or other
protected characteristics” may also warrant removal. 	Id. at 8 (citing N.Y. Exec. Law § 296(4);
N.Y. Educ. Law § 3201-a; N.Y. Civil Rts. Law § 40-c). 2
One week later, on May 15, 2025, the Guidance Letter was circulated via email to local
boards of education, advising them that the Guidance Letter “provides information around
obligations to adhere to state laws and regulations that safeguard students from harassment,
bullying, and the disclosure of protected student information, and the consequences for not meeting
those obligations.” Dkt. No. 1 at ¶ 38; see also Dkt. No. 1-2. The email further advises board of
2 The Guidance Letter also notes that school board meetings are considered limited public fora
under the First Amendment, which means that school boards that allow public comment “may
make reasonable, viewpoint-neutral rules governing the content of speech allowed[.]” Dkt. No. 1-
1 at 4 (quoting Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)
and collecting cases).
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education members that they “must conduct meetings in a manner that respects the dignity of all
students.” Dkt. No. 1 at ¶ 38.
Plaintiffs believe that sex is an immutable, objective characteristic, and thus, an individual
cannot change his or her gender or hold multiple genders. See Dkt. No. 12-2 at ¶ 6(b)-(d); Dkt.
No. 12-3 at ¶ 6(b)-(d); Dkt. No. 12-4 at ¶ 5(b)-(d); Dkt. No. 12-5 at ¶ 6(b)-(d). 	Plaintiffs also
express opposition to the use of preferred pronouns that conflict with an individual’s biological
sex. See Dkt. No. 12-2 at ¶ 6(g); Dkt. No. 12-3 at ¶ 6(g); Dkt. No. 12-4 at ¶ 5(g); Dkt. No. 12-5 at
¶ 6(g). 	Plaintiffs additionally believe that students should be required to use sex-separated
restroom and locker room facilities that correspond with their biological sex and that student
athletes should only be permitted to play sex-separated sports that correspond with their biological
sex. See Dkt. No. 12-2 at ¶ 6(e)-(f); Dkt. No. 12-3 at ¶ 6(e)-(f); Dkt. No. 12-4 at ¶ 5(e)-(f); Dkt.
No. 12-5 at ¶ 6(e)-(f) (expressing the opinion that the presence of biological males in a girls’ locker
room or bathroom presents a safety concern).
Plaintiffs have spoken and expressed their opinions regarding gender identity and
transgender student policies during school board meetings. See Dkt. No. 12-2 at 8; Dkt. No. 12-4
at ¶¶ 9-10; Dkt. No. 12-5 at ¶¶ 10-11. 	According to Plaintiffs, before the publication of the
Guidance Letter, Plaintiffs did not face explicit threats of removal or censorship for speaking about
gender identity and transgender student policies at public school board meetings. Dkt. No. 1 at ¶
32. Specifically, School Board Plaintiffs never observed someone being “shut down” during the
public comment portion of their respective board meetings for speaking about gender identity or
transgender student policies, and neither of the Parent Plaintiffs were prevented from speaking
about gender identity issues during public comment. Id. at ¶¶ 33-34.
No Plaintiff alleges to have changed their behavior or to have had their speech chilled
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following the issuance of the Guidance Letter. 	Indeed, the School Board Plaintiffs “intend to
continue to express [their] views and advocate for policies consistent with [their] views,” “use
pronouns that correspond to a person’s biological sex,” “permit parents and community members
to speak freely . . . about gender identity and transgender issues[,] . . . [and] to continue allowing
parents and community members to use pronouns that correspond to a third person’s biological
sex, rather than ‘preferred’ pronouns.” Dkt. No. 12-2 at ¶¶ 15, 16, 19; Dkt. No. 12-3 at ¶¶ 16, 17,
19. 	Likewise, Parent Plaintiffs “intend to continue attending [b]oard meetings and expressing
[their] views on gender identity and transgender issues,” and intend to continue to use biological
pronouns during the public comment portion of board meetings. 	Dkt. No. 12-4 at ¶¶ 16-17; Dkt.
No. 12-5 at ¶¶ 16-17.
Relatedly, the School Board Plaintiffs allege that they fear being removed from their
respective boards by the Commissioner if they advocate for policies consistent with their views;
offer, advocate for, or vote in favor of school board resolutions advancing policies consistent with
their views; use biological pronouns during board meetings when discussing gender identity and
transgender student policies; or permit parents and community members to speak in a manner
prohibited by the Guidance Letter. See Dkt. No. 12-2 at ¶¶ 18, 20; Dkt. No. 12-3 at ¶¶ 18, 20; see
also Dkt. No. 24-1 at ¶¶ 5-11 and Dkt. No. 24-2 at ¶¶ 5-10 (claiming fear of removal based on
communications they have received from activists). Similarly, the Parent Plaintiffs allege that they
fear that, if they misgender individuals identifying as transgender during public comment, the
Rockville Centre board will prohibit them from expressing their views and brand their actions as
harassing and bullying children. See Dkt. No. 12-4 at ¶¶ 18-19; Dkt. No. 12-5 at ¶¶ 19-20.
But Plaintiffs do not allege that, following the issuance of the Guidance Letter, any
application for removal was filed against a school board member, or that Defendants removed any
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school board member from office in response to the Guidance Letter. While Plaintiffs allege that
a parent filed a complaint against the Massapequa Union Free School District in response to the
board’s passage of a resolution prohibiting transgender students from using restrooms that align
with their gender identity approximately four months after the issuance of the Guidance Letter, see
Dkt. No. 20-4 at ¶¶ 5-6, the Commissioner stayed the resolution, and in any event, the complaint
was not against any individual school board member, nor did it seek the removal of any school
board member. Dkt. No. 24-2 at ¶ 9.
C. Procedural History
On December 9, 2025, Plaintiffs filed a complaint alleging that Defendants have violated
their constitutional rights pursuant to the First and Fourteenth Amendments because (i) the
Guidance Letter is a viewpoint-based restriction on speech, (ii) the Guidance Letter is vague and
overbroad, and (iii) the Guidance Letter compels the School Board Plaintiffs’ speech in a manner
that violates the First Amendment. See generally Dkt. No. 1. One month later, on January 9, 2026,
Plaintiffs filed a motion for a preliminary injunction seeking to preliminarily enjoin Defendants
from enforcing the Guidance Letter. Dkt. No. 12. 3 On February 20, 2026, Defendants opposed
the Motion and filed their Cross-Motion to dismiss the Complaint. Dkt. No. 20. On March 27,
2026, Plaintiffs replied in further support of their Motion and opposed Defendants’ Cross-Motion.
Dkt. No. 24. On April 10, 2026, Defendants replied in further support of their Cross-Motion. Dkt.
No. 27. On May 27, 2026, the Court held a hearing on both the Motion and Cross-Motion. See
Dkt. No. 29. 	Accordingly, Plaintiffs’ Motion and Defendants’ Cross-Motion are now ripe for
adjudication.
3 Plaintiffs also request the Court to waive any bond required by Rule 65(c) of the Federal Rules
of Civil Procedure “because they seek to uphold First Amendment rights.” Dkt. No. 12-1 at 29
(citing Hartford Courant Co., LLC v. Carroll, 474 F. Supp. 3d 483, 508 (D. Conn. 2020)).
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III. 	STANDARD OF REVIEW
A. Preliminary Injunction
“A preliminary injunction ‘is one of the most drastic tools in the arsenal of judicial
remedies[.]’” Two Hands IP LLC v. Two Hands Am., Inc., 563 F. Supp. 3d 290, 298 (S.D.N.Y.
2021) (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007)). “A
preliminary injunction is an extraordinary and drastic remedy, one that should not be granted
unless the movant, by a clear showing, carries the burden of persuasion.” Sussman v. Crawford,
488 F.3d 136, 139-40 (2d Cir. 2007) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997))
(emphasis in original). Further, a preliminary injunction is “never awarded as of right,” Ayco Co.,
L.P. v. Frisch, 795 F. Supp. 2d 193, 200 (N.D.N.Y. 2011) (quoting Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008)), and the decision to grant such relief “rests in the sound
discretion of the district court[.]” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir.
1990).
A party seeking preliminary injunctive relief must establish: “(1) irreparable harm; (2)
either a likelihood of success on the merits or both serious questions on the merits and a balance
of hardships decidedly favoring the moving party; and (3) that a preliminary injunction is in the
public interest.” N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, 883 F.3d 32, 37 (2d Cir. 2018).
B. Rule 12(b)(1)
Federal courts “have an independent obligation to determine whether subject matter
jurisdiction exists, even in the absence of a challenge from any party.” 	Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006) (citation omitted). Because it involves a court’s power to hear a case,
subject matter jurisdiction can never be forfeited or waived. 	United States v. Cotton, 535 U.S.
625, 630 (2002). A district court may dismiss an action for lack of subject matter jurisdiction
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under Rule 12(b)(1) of the Federal Rules of Civil Procedure when the court “lacks the statutory or
constitutional power to adjudicate it.” 	Huntress v. United States, 810 F. App’x 74, 75 (2d Cir.
2020) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “Where a plaintiff
lacks standing, a court has no subject matter jurisdiction to hear its claims.” Sellers Rep., LLC v.
Abbott Lab’ys, No. 23-cv-1034, 2026 WL 879162, at *4 (S.D.N.Y. Mar. 31, 2026) (citing Cent.
States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d
181, 198 (2d Cir. 2005)).
“A plaintiff asserting subject matter jurisdiction must demonstrate its existence by a
preponderance of the evidence.” Jeannot v. New York State, 762 F. Supp. 3d 217, 223 (E.D.N.Y.
2025) (quoting Makarova, 201 F.3d at 113). 	The Court “must accept as true all material facts
alleged in the complaint and draw all reasonable inferences in the plaintiff’s favor,” see Conyers
v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009) (citations omitted), but “argumentative inferences
favorable to the party asserting jurisdiction should not be drawn.” 	Buday v. New York Yankees
P’ship, 486 F. App’x 894, 895 (2d Cir. 2012) (summary order) (citations omitted). 	“Where, as
here, ‘subject matter jurisdiction is contested, courts are permitted to look to materials outside the
pleadings.’” Four S Inv. Grp., Inc. v. Hilton Worldwide Manage Ltd., No. 26-cv-810, 2026 WL
396099, at *3 (S.D.N.Y. Feb. 12, 2026) (quoting Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir.
2010)); see also Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.
2014) (“[W]here jurisdictional facts are placed in dispute, the court has the power and obligation
to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.”
(citations omitted)).
C. Rule 12(b)(6)
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal
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sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007).
In considering legal sufficiency, a court must accept as true all well-pled facts in the complaint
and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007). 	This presumption, however, does not extend to legal
conclusions. 	See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	Although a court’s review of a
motion to dismiss is generally limited to the facts presented in the pleadings, the court may
consider documents that are “integral” to the pleadings even if they are neither physically attached
to, nor incorporated by reference into, the pleadings. See Mangiafico v. Blumenthal, 471 F.3d 391,
398 (2d Cir. 2006) (quoting Chambers, 282 F.3d at 152-53).
To survive a motion to dismiss, a party need only plead “a short and plain statement of the
claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to
relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation
omitted). Under this standard, a pleading’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level,” id. at 555, and present claims that are “plausible on [their]
face.” Id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted unlawfully.” 	Iqbal, 556 U.S. at 678
(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s
liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff
has “not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint
must be dismissed.” Id. at 570.
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IV. 	DISCUSSION
A. Standing
Standing is a threshold question in every federal case, see Griffin v. Doe, 71 F. Supp. 3d
306, 316 (N.D.N.Y. 2014), that asks whether a plaintiff is the proper party to bring suit. See Am.
Italian Women for Greater New Haven v. City of New Haven, No. 21-cv-1401, 2023 WL 122043,
at *3 (D. Conn. Jan. 5, 2023) (citing Baur v. Veneman, 352 F.3d 625, 632 (2d Cir. 2003)). “Article
III of the Constitution of the United States restricts the jurisdiction of federal courts to actual cases
or controversies.” Esquibel v. Colgate-Palmolive Co., No. 23-cv-742, 2023 WL 7412169, at *2
(S.D.N.Y. Nov. 9, 2023) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). “For there to
be a case or controversy under Article III, the plaintiff must have a personal stake in the case—in
other words, standing.” A.H. by E.H. v. New York State Dep’t of Health, 147 F.4th 270, 276 (2d
Cir. 2025) (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)).
“The task of the district court is to determine whether the [complaint] alleges facts that
affirmatively and plausibly suggest that the plaintiff has standing to sue.” 	Carter v. HealthPort
Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (internal quotation marks and alterations omitted).
“To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a sufficient causal
connection between the injury and the conduct complained of, and (3) a likelihood that the injury
will be redressed by a favorable decision.” 	Cerame v. Slack, 123 F.4th 72, 80 (2d Cir. 2024)
(quoting Picard v. Magliano, 42 F.4th 89, 97 (2d Cir. 2022)) (internal quotation marks omitted).
Regarding the first element, “[a]n injury sufficient to satisfy Article III must be concrete and
particularized and actual or imminent, not conjectural or hypothetical.” Id. at 80-81 (quoting Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)) (internal quotation marks omitted). “An alleged
future injury will suffice if the threatened injury is ‘certainly impending’ or there is ‘substantial
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risk’ of harm.” Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409, 414 n.5 (2013)).
Defendants focus on this first element, contending that Plaintiffs lack standing because their
purported injury is speculative and hypothetical, not “actual or imminent.” Dkt. No. 20-1 at 15.
Specifically, Defendants contend that Plaintiffs (i) have not alleged that the Guidance Letter has
chilled or will chill their speech, and (ii) have not plausibly alleged a credible threat of enforcement
that is fairly traceable to the Guidance Letter. Id. at 16-21.
To assess the existence of a cognizable injury in fact in the context of a pre-enforcement
First Amendment challenge, courts apply the three-pronged test set forth by the Supreme Court in
Susan B. Anthony List. See Vitagliano v. Cnty. of Westchester, 71 F.4th 130, 136 (2d Cir. 2023)
(citing Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014)); see also Cerame, 123 F.4th
at 81. Under this test, to establish a cognizable injury in fact, Plaintiffs must demonstrate “(1) ‘an
intention to engage in a course of conduct arguably affected with a constitutional interest’; (2) that
the intended conduct is ‘arguably proscribed by’ the challenged regulation; and (3) that ‘there
exists a credible threat of prosecution thereunder’ that is ‘sufficiently imminent.’” Cerame, 123
F.4th at 81 (quoting Susan B. Anthony List, 573 U.S. at 159).
1. 	School Board Plaintiffs
As an initial matter, speech related to gender identity and transgender student policies
involves a course of conduct affected with a First Amendment interest. 	See, e.g., Cerame, 123
F.4th at 82 (finding that “[a]ppellants’ desire to engage in speech on controversial issues” such as
free exercise of religion and critical race theory “clearly involves a course of conduct affected with
a First Amendment interest”).
As to the second prong, the School Board Plaintiffs’ contemplated speech is arguably
proscribed by the Guidance Letter, or at least the New York State statutes and regulations
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interpreted therein. 	“Intended conduct” need only be “arguably proscribed” by the challenged
statute, regulation or policy, not necessarily “in fact proscribed.” See Picard, 42 F.4th at 98. Here,
the School Board Plaintiffs’ advocacy for gender identity and transgender student policies
consistent with their views and their use of biological pronouns during school board meetings
constitutes conduct that the statutes and regulations cited in the Guidance Letter arguably
proscribe. “‘[A] plaintiff’s interpretation’ of a prohibition and its application to him need not be
‘the best interpretation,’ only ‘reasonable enough’ for it to convey standing.” 	See Cerame, 123
F.4th at 83 (internal quotation marks omitted) (quoting Picard, 42 F.4th at 98); see also Picard,
42 F.4th at 99 (noting that both the “arguably proscribed” standard and the “reasonable enough”
standard, which predates the Supreme Court’s decision in Susan B. Anthony List, “consider
whether the plaintiff’s proffered interpretation of the statute—which leads them to fear its
enforcement against their intended conduct—is arguable or reasonable”). Here, while it is possible
that none of the School Board Plaintiffs’ intended speech is actually proscribed by the Guidance
Letter, the School Board Plaintiffs’ contrary conclusion that such speech could be proscribed is
arguable and reasonable enough to satisfy the second prong. See, e.g., Khalil v. Trs. of Columbia
Univ. in City of New York, No. 25-cv-2079, 2026 WL 775813, at *6 (S.D.N.Y. Mar. 19, 2026)
(finding that student plaintiffs’ contemplated anti-Israel speech was arguably proscribed by
Columbia University’s revised antidiscrimination policy); Cerame, 123 F.4th at 83 (finding that
appellants’ contemplated comments were “arguably proscribed” by a recently enacted Connecticut
Rule of Professional Conduct).
However, as to the third prong, the School Board Plaintiffs have not demonstrated that they
face a credible threat of enforcement. 	Whether a threat of enforcement is credible “necessarily
depends on the particular circumstances at issue, and will not be found where plaintiffs do not
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claim that they have ever been threatened with prosecution, that a prosecution is likely, or even
that a prosecution is remotely possible.” Cerame, 123 F.4th at 85 (quoting Picard, F.4th at 98).
In evaluating whether there is a credible threat of enforcement, courts “consider, among other
factors, the presumption that the government intends to enforce its laws, the recency of the
applicable regulation, the general extent of enforcement against similar conduct, and whether there
has been any specific disavowal of enforcement against a plaintiff or his conduct.” 	Id. (citing
Vitagliano, 71 F.4th at 138-39). 	For plaintiffs seeking pre-enforcement review, “courts are
generally willing to presume that the government will enforce the law as long as the relevant statute
is recent and not moribund.” Vitagliano, 71 F.4th at 138 (quoting Cayuga Nation v. Tanner, 824
F.3d 321, 331 (2d Cir. 2016)).
Here, Defendants argue that Plaintiffs fail to allege a credible threat of enforcement
because 	the 	Guidance 	Letter 	is 	informal 	guidance, 	as 	it 	merely 	expresses 	Defendants’
interpretation of state law, and thus, any legal consequences that Plaintiffs allege that they could
conceivably face are not actual or well-founded. See Dkt. No. 20-1 at 19. Plaintiffs contend that
they have a well-founded fear that Defendants will enforce the Guidance Letter against them
because Defendants published and circulated the Guidance Letter approximately one year ago, the
Guidance Letter threatens coercive action against school board members if they do not censor their
speech during school board meetings, the Commissioner has the authority to remove school board
members, activists who disagree with Plaintiffs’ viewpoints regularly attend school board
meetings in Plaintiffs’ districts, and the Guidance Letter “lays out the process for any member of
the public to file applications for the removal of a school board member.” See Dkt. No. 24 at 22-
24.
The Court agrees with Defendants. The Guidance Letter lacks the force of law, as it merely
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serves as a restatement of existing anti-discrimination law and reminds board members of the
various consequences that may follow for failure to comply with applicable New York State law.
See, e.g., Yu v. Vassar Coll., 97 F. Supp. 3d 448, 462 n.7 (S.D.N.Y. 2015) (finding that a “Dear
Colleague” letter published by the United States Department of Education Office for Civil Rights
“does not add requirements to applicable law, but provides information and examples to inform
recipients about how the Office for Civil Rights evaluates whether covered entities are complying
with their legal obligations”); C.C. v. Paradise High Sch., No. 16-cv-2210, 2019 WL 6130439, at
*5 (E.D. Cal. Nov. 19, 2019) (noting that a “Dear Colleague” letter “is a guidance document issued
by a government agency providing insight into that agency’s interpretation or application of a
particular statute, regulation or rule”), aff’d sub nom. Csutoras v. Paradise High Sch., 12 F.4th 960
(9th Cir. 2021); United States ex rel. Hitrost, LLC v. Study Across the Pond, LLC, No. 21-cv-
10274, 2025 WL 871024, at *8 (D. Mass. Mar. 19, 2025) (explaining that a “Dear Colleague”
letter was “merely meant to provide guidance on a previously issued final regulation” and “does
not by itself create or purport to create law”). 	Here, the Guidance Letter states that boards of
education that “permit the harassment of LGBTQ+ students may expose their school districts to
liability under New York law,” including, under the New York State Constitution, New York Civil
Rights Law, and the New York State Human Rights Law. 	See Dkt. No. 1-1 at 6-7 (noting that
“[c]onduct that denies LGBTQ+ students equal protection of the law or otherwise subjects them
to ‘any discrimination in their civil rights’ on the basis of these or other protected characteristics
violates the New York State Constitution and Civil Rights Law” and “New York State Human
Rights Law makes it unlawful for school districts to ‘permit the harassment of any student’ because
of the student’s sex, sexual orientation, gender identity, or gender expression” (citing, inter alia,
N.Y. Const. art. I, § 11(a); N.Y. Civ. Rts. Law § 40-c; N.Y. Exec. Law § 296(4)). 	Additionally,
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the Guidance Letter does not mandate or direct the removal of school board members. 	Instead,
the Guidance Letter advises board members that they “may” be removed by the Commissioner if
they, inter alia, “violate the Education Law or another law ‘pertaining to public schools,’ including
the state Human Rights Law”; “engage[] in a pattern of inappropriate, antagonistic and offensive
conduct that interferes with the board’s ability to function”; or “willfully make unlawful
disclosures of confidential student information learned in the course of their official duties.” Dkt.
No. 1-1 at 7-8 (citing, inter alia, N.Y. Educ. Law § 306(1); N.Y. Exec Law § 296(4)). 	Such
conduct is independently prohibited by pre-existing state law, which the Guidance Letter
extensively references.
Moreover, none of Plaintiffs’ arguments to the contrary are persuasive. 	Plaintiffs argue
that the Guidance Letter establishes a credible threat of enforcement by “detail[ing] . . . the
potential consequences for anyone who violates its prohibitions,” thereby giving it the force and
effect of law. 	Dkt. No. 12-1 at 28. 	However, “[t]he identification of a credible threat . . .
necessarily depends on the particular circumstances at issue” and “cannot rest on fears that are
‘imaginary or speculative.’” Knife Rts., Inc. v. Vance, 802 F.3d 377, 384 (2d Cir. 2015) (quoting
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)); see also Nat’l Educ.
Ass’n v. U.S. Dep’t of Educ., 779 F. Supp. 3d 149, 169, 178 (D.N.H. 2025) (holding that plaintiffs
had standing to challenge “Dear Colleague” letter where the letter indicated that compliance “with
the Department of Justice’s interpretation of federal law” was a condition of receiving federal
funding and opened investigations into forty-five universities following its issuance). 	“In
determining whether a credible threat of enforcement exists, courts have considered (i) whether or
not a law has been enforced against a plaintiff in the past; (ii) whether authorities have directly or
expressly threatened the plaintiff with enforcement; and (iii) the history of prosecution or
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enforcement under the statute.” Bellocchio v. Garland, 614 F. Supp. 3d 11, 16 (S.D.N.Y. 2022)
(citations omitted).
Here, regarding the first and third factors, the School Board Plaintiffs do not allege that the
Guidance Letter has ever been enforced against them in the past. Compare Knife Rts., 802 F.3d at
385 (holding that plaintiffs demonstrated a credible threat of enforcement that was “hardly
conjectural or hypothetical given that defendant . . . recently identified [one of the plaintiffs] as a
violator and pursued enforcement action against it”) with Adam v. Barr, No. 18-cv-2106, 2019 WL
1426991, at *4 (S.D.N.Y. Mar. 29, 2019) (finding that plaintiff failed to allege a credible threat of
enforcement, in part, because plaintiff “fail[ed] to allege that the [statute] had ever been enforced
against him in the past”), aff’d, 792 F. App’x 20 (2d Cir. 2019). Nor do Plaintiffs allege a history
of enforcement of the Guidance Letter against any school board member, which is significant in
light of the Commissioner’s statutory authority to remove board members. In fact, Plaintiffs do
not allege that any school board member has been removed following the issuance of the Guidance
Letter, much less that any application for removal has been filed in response to the Guidance Letter.
Compare Khalil, 2026 WL 775813, at *6 (finding credible threat of enforcement where defendant
“recently suspended or expelled more than 80 students for participation in pro-Palestine protests
and subjected plaintiffs to investigations based purely on anti-Israel speech” (internal quotation
marks and alterations omitted)) with Bellocchio, 614 F. Supp. 3d at 18 (finding that plaintiff had
not alleged a credible threat of enforcement, in part, because he “d[id] not plead any facts . . .
relating to the history of enforcement of the [statute]” prohibiting the sale and purchase of human
organs that carried civil and criminal penalties).
And as to the second factor—whether Defendants have directly or expressly threatened the
School Board Plaintiffs with enforcement—no Defendant is alleged to have threatened to enforce
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the Guidance Letter against the School Board Plaintiffs. 	Compare Evergreen Ass’n, Inc. v.
Hochul, No. 20-cv-112 (AMN/DJS), 2025 WL 359074, at *6 (N.D.N.Y. Jan. 31, 2025) (finding
no credible enforcement where plaintiff “failed to identify any threatened enforcement, and thus,
[p]laintiff’s assertion of standing rest[ed] on the mere existence of [the statute]” (internal quotation
marks and citation omitted)) with Antonyuk v. James, 120 F.4th 941, 1006-07 (2d Cir. 2024)
(finding credible threat of enforcement where statements by law enforcement officials that were
“[f]ar from disavowing the prosecution of [p]laintiffs” and “warn[ed] that [law enforcement] will
have ‘zero tolerance’ for violations” provided sufficient “evidence that [p]laintiffs face[d] a
realistic threat of arrest and prosecution”), cert. denied, 145 S. Ct. 1900 (2025).
Plaintiffs claim that the Guidance Letter conveys a credible threat of enforcement by
“lay[ing] out the process for any member of the public to file applications for the removal of a
school board member” such that anyone who is aware of the Guidance Letter “knows exactly how
to commence a removal proceeding[.]” Dkt. No. 24 at 23. This is overstated. The Guidance Letter
notes that applications for removal may be initiated “by a person aggrieved by the board member’s
actions,” see Dkt. No. 1-1 at 8 (citing N.Y. Educ. Law § 310; 8 N.Y.C.R.R. § 275), but does not
provide any additional guidance regarding the procedures for filing such an application, including
what information it must contain, where or how it should be submitted, or the standards governing
its review. Rather, the Guidance Letter notes that “[s]tudents and other community members who
have experienced or witnessed harassment or discrimination . . . may lodge a complaint” with the
New York State Attorney General’s Office, or seek assistance from other state agencies, such as
the New York State Division of Human Rights, and provides links to their respective resources.
Id. at 9 (emphasis added). Thus, the Guidance Letter, by merely describing the types of conduct
that may result in potential removal from office and referencing the types of individuals who can
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initiate such removal, cannot be reasonably understood to convey a credible threat of enforcement.
Moreover, fear that an activist parent or community member will file an application for the
School Board Plaintiffs’ removal, without more, is insufficient, especially where the School Board
Plaintiffs have conducted numerous school board meetings following the issuance of the Guidance
Letter and no application for removal is alleged to have been filed. See Dkt. No. 20-4 at ¶¶ 7-8
(noting that the Massapequa Union Free School District held at least six school board meetings
following the issuance of the Guidance Letter during which members of the public expressed
opinions on transgender student policies, including four meetings where Plaintiff Wachter spoke
about topics including transgender student policies).
The Supreme Court cases that Plaintiffs cite also bear little resemblance to the case at bar.
In Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), the Rhode Island legislature established a
“Rhode Island Commission to Encourage Morality in Youth” and empowered it “to educate the
public concerning any book . . . manifestly tending to the corruption of the youth,” and “to
investigate and recommend the prosecution” of all violations of the relevant laws. Id. at 59-60.
The Commission sent multiple notices to a book distributor to notify him that “certain designated
books or magazines distributed by him had been reviewed by the Commission and had been
declared . . . to be objectionable for sale, distribution or display” to minors. Id. at 61. The notice
informed the distributor that the Commission had circulated lists of “objectionable publications”
to local police departments, and “thanked [the distributor], in advance, for his ‘cooperation’ with
the Commission,” as it would “eliminate the necessity of [the Commission] recommending
prosecution to the Attorney General’s department.” Id. at 62-63, 62 n.5. Additionally, “[a] local
police officer usually visited [the distributor] shortly after [his] receipt of a notice to learn what
action he had taken.” Id. at 63. The Supreme Court concluded that the distributor’s compliance
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with the Commission’s directives was not voluntary because the “notices, phrased virtually as
orders, reasonably understood to be such by the distributor, invariably followed up by police
visitations, in fact stopped the circulation of the listed publications ex proprio vigore.” Id. at 68.
Similarly, in Susan B. Anthony List, an anti-abortion organization challenged an Ohio
statute that criminalized knowingly or recklessly making certain false statements during the course
of a political campaign. 573 U.S. at 152. Petitioner Susan B. Anthony List issued a press release
stating that a political candidate supported “taxpayer-funded abortion” by voting for the
Affordable Care Act. Id. at 153-54. The candidate then filed a complaint with the Ohio Elections
Commission alleging that Susan B. Anthony List violated the statute. Id. at 154. A Commission
panel found probable cause to believe that a violation had been committed and scheduled a hearing
before the full Commission. Id. After the panel’s probable cause determination, but before the
Commission hearing, Susan B. Anthony List filed suit alleging that the statute violated the First
and Fourteenth Amendments and seeking declaratory and injunctive relief, which was stayed
pending the completion of the Commission proceedings. Id. at 154-55. However, the candidate
withdrew his complaint against Susan B. Anthony List after he lost the election, which lifted the
stay. Id. at 155. Susan B. Anthony’s suit was then consolidated with a separate suit brought by
petitioner Coalition Opposed to Additional Spending and Taxes, which also alleged that it intended
to criticize the candidate’s vote for the Affordable Care Act as a vote “to fund abortions with tax
dollars,” but refrained from doing so because of the Commission proceedings against Susan B.
Anthony List. Id. at 155-56. Although the Ohio Elections Commission never enforced the statute
against the petitioners, the Supreme Court concluded that the petitioners faced a credible threat of
enforcement because (i) both petitioners pled “specific statements they intend[ed] to make in future
election cycles” about other federal candidates who voted for the Affordable Care Act; (ii) the
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intended speech was “arguably” proscribed by the statute; (iii) the statute had a history of past
enforcement, as the Ohio Elections Commission had “already found probable cause to believe that
[one plaintiff] violated the statute”; and (iv) the respondents had “not disavowed enforcement if
petitioners ma[de] similar statements in the future.” Id. at 161-65.
Likewise, in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Supreme Court
found that the plaintiffs faced a credible threat of enforcement where a statute criminalized
knowingly providing material support or resources to certain foreign terrorist organizations, and
the Government had already charged about 150 people with violating the statute, and did not argue
that the plaintiffs would not be prosecuted “if they do what they say they wish to do.” Id. at 7-8,
16. 4
Lastly, in Nat’l Rifle Ass’n of Am. v. Vullo, 602 U.S. 175 (2024), the Supreme Court held
that the superintendent of the New York Department of Financial Services (“DFS”) coerced DFS-
regulated entities into terminating their business relationships with the National Rifle Association
(“NRA”). The superintendent issued “guidance letters” that “encouraged” DFS-regulated entities
4 Plaintiffs contend that the Commissioner “has demonstrated a receptiveness to applications for
removal” of school board members for speech related to gender identity and transgender student
policies because the Commissioner, in the course of dismissing a parent’s application for a board
member’s removal as untimely, “‘admonish[ed]’ the board member solely because his speech was
. . . ‘unnecessarily inflammatory.’” Dkt. No. 24 at 22 (citing Decision No. 18,474, Application of
T.L. (Aug. 19, 2024), https://perma.cc/XL6X-4C79 (hereinafter “Application of T.L.”)). 	As an
initial matter, the Court may take judicial notice of matters of public record. Giraldo v. Kessler,
694 F.3d 161, 164 (2d Cir. 2012). However, the Court finds that Plaintiffs’ argument is without
merit. Because the Guidance Letter was published nearly a year after the Commissioner’s decision
was issued, the decision cannot establish a credible threat of enforcing the Guidance Letter.
Additionally, despite the Commissioner finding the board member’s remarks to be “unnecessarily
inflammatory,” the Commissioner did not remove the board member. 	See Application of T.L.
(citing, inter alia, N.Y. Const., art. XIII, § 1; Pub. Officers L. § 10 (noting that board members
“take an oath of office to uphold the law and faithfully discharge their duties,” which “includes
the ‘duty to proceed with constructive discussions aimed at achieving the best possible governance
of the school district’”)).
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to “1) continue evaluating and managing their risks, including reputational risks, that may arise
from their dealings with the NRA or similar gun promotion organizations; (2) review any
relationships they have with the NRA or similar gun promotion organizations; and (3) take prompt
actions to manage these risks and promote public health and safety.” Id. at 184 (internal quotation
marks and brackets omitted) (emphasis added). The guidance letters were accompanied by a joint
press release issued by the superintendent and then-New York Governor Andrew Cuomo that
“urg[ed] all insurance companies and banks doing business in New York to join those that have
already discontinued their arrangements with the NRA.” Id. (internal quotation marks omitted).
Additionally, prior to the issuance of the guidance letters, the superintendent allegedly told Lloyd’s
of London (“Lloyd’s”), a DFS-regulated entity, during a private meeting that she would be “less
interested in pursuing [technical insurance law] infractions so long as Lloyd’s ceased providing
insurance to gun groups, especially the NRA.” 	Id. at 192. 	DFS then subsequently entered into
separate consent decrees with Lloyd’s and other DFS-regulated entities wherein the entities
stipulated to violations of New York insurance law, “agreed not to provide any NRA-endorsed
insurance programs (even if lawful),” and agreed to pay multi-million dollar fines. Id. at 185. In
this case, the Supreme Court held that the superintendent’s communications with DFS-regulated
entities, together with the adverse actions taken against them, plausibly alleged that the
superintendent coerced those entities into terminating their business relationships with the NRA.
Id. at 198.
In each of these cases, the Supreme Court identified concrete and specific adverse
government action meant to punish or suppress First Amendment protected speech. 	In Bantam
Books, the Commission’s notices, “phrased virtually as orders,” included “thinly veiled threats to
institute criminal proceedings” that warned distributors that the Commission would recommend
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prosecution if they failed to pull the targeted publications, which were “invariably followed up by
police visitations” to determine what actions had been taken. 	372 U.S. at 68. 	In Vullo, the
superintendent’s communications with Lloyd’s were “reasonably understood as a threat,” as the
superintendent stated that she would ignore unrelated infractions if Lloyd’s ceased underwriting
NRA insurance policies. 602 U.S. at 192-93. DFS then subsequently entered into consent decrees
that imposed significant monetary penalties on Lloyd’s and several DFS-regulated entities. Id. at
185. 	In both Susan B. Anthony List and Holder, the statutes at issue already had a history of past
enforcement. 	In Susan B. Anthony List, the Ohio Elections Commission had already found
probable cause to believe that one of the plaintiffs violated the statute, see 573 U.S. at 164 (noting
that “past enforcement against the same conduct is good evidence that the threat of enforcement is
not ‘chimerical’”), and in Holder, the Government had already charged approximately 150 people
with violating the statute at issue. 	561 U.S. at 16. 	By contrast, this case involves no criminal
statute, no police or law enforcement involvement, no monetary penalties, and no evidence of prior
complaints or prosecutions. References to applicable legal standards for removal and those who
can initiate it, do not, standing alone, transform the Guidance Letter into a credible threat of
adverse government action.
Accordingly, the School Board Plaintiffs have failed to establish a credible threat of
enforcement.
2. 	Parent Plaintiffs
Lastly, the Parent Plaintiffs face a separate, additional problem with respect to standing.
Even if a plaintiff plausibly alleges an injury in fact, in order to establish standing under Article
III, the plaintiff must also demonstrate causation and redressability, i.e., that their injury “likely
was caused or likely will be caused by the defendant’s conduct,” and when that is true, “enjoining
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the action . . . will typically redress that injury.” 	Food & Drug Admin. v. All. For Hippocratic
Med., 602 U.S. 367, 381-82 (2024).
The Parent Plaintiffs allege that the Guidance Letter “expressly targets for punishment” the
Parent Plaintiffs’ viewpoints and speech during school board meetings. Dkt. No. 1 at ¶¶ 163-164.
The Parent Plaintiffs further allege that “New York law empowers the public, the Commissioner,
and the Attorney General to take action against Parent Plaintiffs who allegedly violate the laws
Defendants have highlighted in the Guidance Letter.” Id. at ¶ 167. But as Defendants correctly
observe, the Guidance Letter, and the laws and regulations to which it cites, do not apply to the
Parent Plaintiffs. See Dkt. No. 20-1 at 19. For instance, the Guidance Letter “provides resources
to assist board members in sustaining a safe and supportive learning environment for LGBTQ+
students in their districts” and “remind[s] boards of education of their obligation” to comply with
New York State law by identifying various legal protections that may be violated by board member
conduct and the circumstances under which board members may be removed from office. 	See
Dkt. No. 1-1 at 3. Indeed, Plaintiffs concede that the Guidance Letter is addressed to “colleagues”
of the New York State Attorney General and the Commissioner for the New York State Education
Department, i.e., board of education members. Dkt. No. 1 at ¶ 37. It was neither circulated to nor
directed at non-members.
Accordingly, “standing is ‘substantially more difficult to establish’ where, like here, ‘the
plaintiff is not himself the object of the government action or inaction [that] he challenges.’”
Neurological Surgery Prac. of Long Island, PLLC v. United States Dep’t of Health & Hum. Servs.,
145 F.4th 212, 225 (2d Cir. 2025) (quoting Lujan, 504 U.S. at 562). “When a plaintiff’s asserted
injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of
someone else, much more is needed than in cases where the plaintiff is the object of government
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action.” Id. (quoting Lujan, 504 U.S. at 562) (emphasis in original) (alterations omitted). “When
the plaintiff is an unregulated party, causation ‘ordinarily hinges on the response of the regulated
(or regulable) third party to the government action or inaction—and perhaps on the response of
others as well.’” 	Food & Drug Admin., 602 U.S. at 383 (quoting Lujan, 504 U.S. at 562). 	To
prove causation, the Parent Plaintiffs cannot “rely on speculation about the unfettered choices
made by independent actors not before the courts,” but instead “must show a predictable chain of
events leading from the government action to the asserted injury—in other words, that the
government action has caused or likely will cause injury in fact to the plaintiff.” Id. at 383, 385.
“[T]his requirement is in large part designed to ensure that the injury complained of is not the
result of the independent action of some third party not before the court.” Oneida Indian Nation
v. United States Dep’t of the Interior, 336 F. Supp. 3d 37, 47 (N.D.N.Y. 2018) (internal quotation
marks and citations omitted), aff’d, 789 F. App’x 271 (2d Cir. 2019).
Here, Parent Plaintiffs speculate that they will face threats of “being deemed out-of-order,
having their speech silenced, [and] losing the balance of their speaking time” during school board
meetings, and will be “publicly branded bullies and harassers of children by Defendants for
speaking their viewpoint.” 	Dkt. No. 1 at 168. 	First, it is unclear how the publication of the
Guidance Letter, without more, could directly cause the Parent Plaintiffs to be publicly branded as
bullies and harassers of children. Second, to the extent that the Parent Plaintiffs could face threats
of being deemed out-of-order, being silenced, or losing speaking time, such injuries are too
speculative and attenuated to confer standing. 	The Parent Plaintiffs improperly infer that
Defendants’ publication of the Guidance Letter will directly result in any loss of speaking time to
the Parent Plaintiffs, as opposed to the independent actions of other school board members, who
exercise broad discretion in moderating the public comment portion of school board meetings.
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See Alexander v. Sutton, 747 F. Supp. 3d 520, 546 (E.D.N.Y. 2024) (noting that in limited public
fora, such as open school board meetings, “government entities are permitted to restrict the form
or manner of speech offered by members of the public, even if such speech addresses the topic or
agenda of that forum”); see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013) (“We
decline to abandon our usual reluctance to endorse standing theories that rest on speculation about
the decisions of independent actors.”).
Consequently, the Parent Plaintiffs fail to demonstrate causation for purposes of Article III
standing.
* 	* 	*
For the reasons set forth above, Plaintiffs lack standing to challenge the constitutionality
of the Guidance Letter. 5 Accordingly, the Complaint is dismissed without prejudice for lack of
subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3); see also Cortlandt St. Recovery Corp. v.
Hellas Telecomms, S.a.r.l, 790 F.3d 411, 416-17 (2d Cir. 2015) (“A district court properly
dismisses an action under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction if the court
lacks the statutory or constitutional power to adjudicate it, such as when (as in the case at bar) the
plaintiff lacks constitutional standing to bring the action.” (internal quotation marks and citation
omitted)).
B. Preliminary Injunction
Since the Court dismisses Plaintiffs’ claims without prejudice for lack of standing,
Plaintiffs’ motion for a preliminary injunction is denied as moot. 	Where “[t]he plaintiff’s legal
theory 	itself, 	rather 	than 	the 	insufficiency 	of 	the 	plaintiff’s 	evidence . 	. 	. doom[s] 	the
5 Because all Plaintiffs have failed to adequately allege an injury in fact, and the Parent Plaintiffs
have failed to adequately allege causation, the Court declines to address the remaining elements
of Article III standing.
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plaintiff’s standing, . . . the court cannot consider the merits of the preliminary injunction motion
and should dismiss the claim altogether.” Do No Harm v. Pfizer Inc., 126 F.4th 109, 121 (2d Cir.
Jan. 10, 2025) (emphasis in original). Such is the case here. See, e.g., Medicaid Consumers for
Continuity of Care v. McDonald, No. 25-cv-565, 2025 WL 1224189, at *12 (S.D.N.Y. Apr. 24,
2025) (denying preliminary injunction motion as moot after dismissing plaintiffs’ claims for lack
of standing and ripeness); Jeannot, 762 F. Supp. 3d at 240 (denying preliminary injunction motion
as moot after dismissing plaintiffs’ claims for lack of standing, among other reasons); Kearns v.
Cuomo, 415 F. Supp. 3d 319, 337 (W.D.N.Y. 2019) (denying preliminary injunction motion as
moot because “[t]he Court’s determination that it lacks subject matter jurisdiction over [p]laintiff’s
claims eliminates any possibility that the Court could grant [p]laintiff’s request for preliminary
injunctive relief”), aff’d, 981 F.3d 200 (2d Cir. 2020).
V. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that Plaintiffs’ motion for a preliminary injunction, Dkt. No. 12, is DENIED;
and the Court further
ORDERS that Defendants’ cross-motion to dismiss, Dkt. No. 20, is GRANTED; and the
Court further
ORDERS that the Complaint, Dkt. No. 1, is DISMISSED without prejudice; and the
Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
Parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 8, 2026
Albany, New York
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