Native American Guardian's Association et al v. New York State Board of Regents et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MASSAPEQUA UNION FREE SCHOOL
DISTRICT, et al.,
Plaintiffs,
v.
NEW YORK STATE BOARD OF REGENTS,
et al.,
Defendants. 	MEMORANDUM
-----------------------------------------------------------------X 	AND ORDER
NATIVE AMERICAN GUARDIAN’S 	23-CV-7052-SJB-LGD
ASSOCIATION and DAVID FINKENBINDER, 	25-CV-3008-SJB-LGD
Plaintiffs,
v.
NEW YORK STATE BOARD OF REGENTS,
et al.,
Defendants.
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BULSARA, United States District Judge:
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TABLE OF CONTENTS
INTRODUCTION....................................................................................................................... 3
BACKGROUND ......................................................................................................................... 6
I. 	PART 123 ............................................................................................................................. 6
II. 	THE MASSAPEQUA PLAINTIFFS .......................................................................................... 9
III. 	THE NAGA AGREEMENT AND LAWSUIT ........................................................................ 15
DISCUSSION ............................................................................................................................ 20
I. 	THE MASSAPEQUA PLAINTIFFS’ MOTION TO AMEND .................................................... 20
II. 	MASSAPEQUA AND THE BOARD’S CAPACITY TO SUE ...................................................... 26
III. 	ELEVENTH AMENDMENT IMMUNITY ............................................................................... 33
IV. 	ARTICLE III STANDING ..................................................................................................... 36
A. 	First Amendment Claims ............................................................................................. 39
B. 	NAGA’s Equal Protection Claim ................................................................................. 64
C. 	NAGA’s Due Process Claim ........................................................................................ 68
D. 	Dormant Commerce Clause .......................................................................................... 71
E. 	Indian Commerce Clause .............................................................................................. 74
F. 	Title VI and Title VII Claims ....................................................................................... 78
G. 	Claims Under Sections 1981 and 1983 ........................................................................ 86
V. 	BILL OF ATTAINDER .......................................................................................................... 87
CONCLUSION .......................................................................................................................... 90
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INTRODUCTION
The New York State Board of Regents adopted Part 123, a regulation that bans
the use of Native American symbols and imagery as public school mascots in New
York. For over two years, the Massapequa Union Free School District has been trying to
block the law and to retain its right to use its “Chiefs” mascot at sporting events and
school functions. If Massapequa fails to comply with Part 123, it faces serious
consequences, including a loss of funding from New York State and removal of school
officials.
Part 123 may have serious constitutional defects. It appears to enact a legal
classification based on race or ancestry, which subjects it to the most demanding form
of judicial scrutiny. The law may also abridge the First Amendment free speech rights
of Massapequa School Board members and District employees. These difficult
questions, however, are not the subject of this opinion.
This opinion concerns itself almost exclusively with the constitutional
requirement of standing. Standing requires that a plaintiff in federal court have their
own injury; they generally cannot sue to vindicate the rights of other parties or people,
or sue on the basis of a future, speculative, or illusory injury. This limitation “prevents
‘concerned bystanders’ from abusing the federal courts as a forum to air their
‘generalized grievances’ against state actions.”1 In other words, no matter how
1 Doe v. Hochul, 139 F.4th 165, 177 (2d Cir. 2025) (quoting Hollingsworth v. Perry,
570 U.S. 693, 707 (2013)).
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unconstitutional or illegal a law may be, not just anyone can walk into federal court to
block its enforcement.
Several of these claims were addressed in copious detail by Chief Judge Margo
Brodie. Earlier this year, Judge Brodie dismissed Massapequa’s lawsuit, in large part
because the District and its Board lacked the capacity to sue the State of New York,
which created the District and to which it ultimately answers. A member of
Massapequa’s Board, Jeanine Caramore, who also brought claims in her individual
capacity, was permitted to try to fix the procedural and pleading failures that derailed
the prior suit.
Massapequa and its Board were not granted leave to amend their claims, so they
now seek the Court’s permission to do so. But rather than making an effort to solve the
problems Judge Brodie identified, unfortunately, they have recycled their prior
allegations almost word for word and added a host of new claims that resemble
constitutional word salad. Terms like equal protection, the Commerce Clause (dormant
and Indian), Title VI, Title VII, and prior restraint are asserted and paired with seminal
cases of constitutional law in briefs in conclusory fashion, with little analysis or
explanation. This approach fails to cure their incapacity to sue New York State and
standing problems. Suffice it to say, the pleading deficits that derailed Massapequa’s
first attempt have not been remedied, and those problems infect each of the new claims.
There is a new element. Massapequa joined forces with a non-profit association,
the Native American Guardian’s Association (“NAGA”) and entered into a contract by
which NAGA supposedly gave the District rights to continue to use the “Chiefs”
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mascot. Based on that contract, NAGA, along with one of its members, David
Finkenbinder, brought its own lawsuit seeking to enjoin enforcement of Part 123.
NAGA’s entry onto the scene was a clever attempt to cure Massapequa’s
standing problems and its inability to sue the State of New York. Invalidation of a
contract is often an automatic entry into federal court, since the loss of the benefits from
an agreement is an injury that is concrete and potentially immediate. But here, the
document that the parties call a contract in this case is anything but. It does nothing.
NAGA contracted to allow Massapequa to use the Chiefs mascot—but NAGA does not
own the mascot or have any rights to it. And Massapequa has never needed NAGA’s
permission to use the Chiefs mascot. There are yet more features that reflect the
illusory nature of this contract: neither party can sue the other for breach, and either
party can elect to cancel the entire contract if Part 123 prevents Massapequa from using
the Chiefs mascot. In other words, it is a contract in name only, and its invalidation
gives rise to no injury and cannot confer standing.
All this procedural maneuvering—which included filing a third lawsuit and
filing, but later abandoning, an appeal—is unfortunate. It has prevented the timely
resolution of the claims of the one party who has had standing from the start: Jeanine
Caramore, a current School Board member who wishes to use the Chiefs mascot in her
reelection campaign and as a form of political protest, and who contends the law
infringes her First Amendment rights. As explained herein, Caramore is permitted to
amend her complaint to bring three First Amendment challenges to Part 123.
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But for the overwhelming majority of the claims in these two cases, the parties
lack the capacity to sue or standing (or both). Other claims are barred by the Eleventh
Amendment’s immunity for states sued in federal court. Massapequa, its Board,
NAGA, and Finkenbinder, and their claims, are dismissed, and because all their claims
are dismissed, NAGA’s request for a preliminary injunction is also denied. Because
standing implicates subject-matter jurisdiction, and capacity to sue is a curable defect,
each of these dismissals is without prejudice. However, Massapequa and its Board,
having had multiple attempts to file a complaint that survives dismissal, are denied
further leave to amend. And while NAGA could file another complaint, having failed
to allege a cognizable claim only once, it and Finkenbinder should consider permitting
the litigation to go forward on the viable First Amendment claims that have existed
from the beginning and that have been asserted by the one Plaintiff, Caramore, who
indisputably has standing to sue.
BACKGROUND
I. 	Part 123
In 2010, New York State enacted the Dignity for All Students Act, which
“prohibits bullying, harassment, discrimination, and cyberbullying against students in
school or at school functions based on their actual or perceived membership in a
protected class.” (See Massapequa Union Free Sch. Dist. v. N.Y. State Bd. of Regents, No.
23-CV-7052 (“Massapequa”), Proposed Second Am. Compl. filed May 19, 2025
(“Massapequa PAC”), attached to Defs.’ Mot. for Leave as Ex. A, Dkt. No. 66-2 ¶¶ 60–
61). In late 2022, New York State Education Department (“SED”) said that it was
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developing regulations to codify a policy prohibiting public school districts from using
Indigenous team names, imagery, and mascots. (See id. ¶¶ 78–79). After a public
comment period, the State Board of Regents voted to adopt Part 123, which became
effective on May 3, 2023. (Id. ¶ 87; see also Massapequa Union Free Sch. Dist. v. N.Y. State
Bd. Of Regents, No. 23-CV-7052, 2025 WL 929710, at *3 (E.D.N.Y. Mar. 27, 2025)
[hereinafter Dismissal Order]; N.Y. Comp. Codes R. & Regs., tit. 8 (“8 NYCRR”),
§§ 123.1–123.5 (“Part 123”).2
Part 123 provides that “no public school in the State of New York may utilize or
display an Indigenous name, logo, or mascot other than for purposes of classroom
instruction.” 8 NYCRR § 123.2. Part 123 defines “Indigenous name, logo, or mascot” as
“a name, symbol, or image that depicts or refers to Indigenous persons, tribes, nations,
individuals, customs, symbols, or traditions, including actual or stereotypical aspects of
Indigenous cultures, used to represent a public school, including but not limited to such
schools[’] sports teams.” Id. § 123.1. The regulation “does not [apply to] a public
school, school building, or school district named after an Indigenous tribe.” Id.
Part 123 required boards of education in New York to “commit, via resolution, to
eliminating use of all Indigenous names, logos, and mascots by the end of the 2022–
[20]23 school year.” Id. § 123.3(a). These resolutions were required to “identify a plan
to eliminate all use of the prohibited name, logo, or mascot within a reasonable time”
2 The following description of Part 123 tracks Judge Brodie’s prior order. See
Dismissal Order, 2025 WL 929710, at *3–*4.
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which could be “no later than the end of the 2024–2025 school year.”3 Id. The deadline
for these resolutions was June 30, 2023. (Massapequa PAC ¶ 88). Part 123 separately
requires public schools to “prohibit school officers and employees when located on
school property or at a school function from utilizing or promoting any Indigenous
name, logo, or mascot.” 8 NYCRR § 123.5.
Part 123 contains several exceptions. First, it allows New York public schools to
utilize an Indigenous mascot4 if “a written agreement exist[ed] prior to the effective
date of [Part 123] between a federally recognized tribal nation within the State of New
York or a New York State recognized tribal nation and a public school permitting the
use of an Indigenous name, mascot, or logo that is culturally affiliated with such tribe.”
8 NYCRR § 123.4(b). Agreements entered into after May 3, 2023 fall outside this
protection. Second, it allows recognized tribal nations to “choos[e] to use an Indigenous
3 The Massapequa Board passed what it describes as a “forced resolution,”
(Massapequa PAC ¶ 89):
[T]he District Board of Education passed a resolution with a plan to
eliminate the use of prohibited Indigenous names, mascots, and logos by
the end of the 2023-2024 school year. The resolution makes clear, however,
that the Board of Education’s compliance shall in no way serve as a waiver
or be construed as a waiver of the District’s right to, among other things,
challenge (a) whether the use of the “Chiefs” name does in fact constitute a
prohibited “Indigenous name, logo or mascot” pursuant to Part 123, and
(b) 	whether 	Part 	123 	should 	be 	repealed 	and/or 	determined 	to 	be
unenforceable by the Commissioner and/or any court of competent
jurisdiction.
(Id. ¶ 88.)
4 From here on, the Court generally uses the term “mascot” or the phrase
“Indigenous mascot” to mean the full range of items covered by Part 123: names, logos,
and mascots.
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name, logo, or mascot for a sports team comprised of its tribal members, including . . . a
tribal school or intramural league.” Id. § 123.4(a). Third, it allows “any school officer or
employee who is a member of a tribal nation” to “utiliz[e] or promot[e] an Indigenous
name, logo, or mascot of such tribal nation.” Id. § 123.5.
In May of 2023 the SED issued further guidance in a frequently asked questions
(“FAQ”) document. (Massapequa PAC ¶¶ 286–87); see also N.Y. State Dep’t of Educ.,
Background and Frequently Asked Questions Regarding Part 123 of the Regulations of
the Commissioner of Education Relating to Prohibiting the Use of Indigenous Names,
Mascots, and Logos by Public Schools (May 2023) [hereinafter Part 123 FAQ].5 The FAQ
stated that districts that have at any time associated with Indigenous mascots would
have to implement changes under Part 123. (Massapequa PAC ¶ 287).
Failure to comply with Part 123 may result in “removal of school officers, or as a
last resort, withholding of State Aid, pursuant to Education Law § 306[2].” Part 123
FAQ at 9. New York law provides for the removal from office of any school officer who
willfully disobeys a regulation of the Regents or Commissioner of Education, “after a
hearing at which the school officer shall have the right of representation by counsel,” or
the withholding of state funds from a district or city for willful disobedience of a
regulation. N.Y. Educ. Law § 306.
II. 	The Massapequa Plaintiffs
Massapequa Union Free School District (“Massapequa”), the Massapequa Union
Free School District Board of Education (“the Board”), and Jeanine Caramore
5 The FAQ is available at: https://perma.cc/WKW5-45UP.
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(“Caramore”) both in her official capacity as a Board member and her individual
capacity (collectively, “Massapequa Plaintiffs”), commenced their challenge on
September 21, 2023, and filed their first Amended Complaint on January 16, 2024.
(Massapequa, Compl., Dkt. No. 2; Massapequa, Am. Compl. (“Massapequa Am. Compl.”),
Dkt. No. 24).
The First Amended Complaint was brought against the New York State Board of
Regents, as well as its members in their official capacities (the same members named in
the PAC currently before the Court). (Massapequa Am. Compl. at 1). All the
Massapequa Plaintiffs brought claims against all Defendants under the New York State
Administrative Procedures Act for violating the notice-and-comment requirement, (id.
¶¶ 101–10), as well as allegations of state and federal constitutional separation-of-
powers violations, (id. ¶¶ 123–33). There were two categories of First Amendment
claims. First, all the Massapequa Plaintiffs brought a vagueness and overbreadth
challenge to Part 123. (Id. ¶¶ 134–49). They claimed the regulation failed to clearly
define what conduct it prohibited, encouraged arbitrary and discriminatory
enforcement, (id. ¶¶ 140–44), and imposed viewpoint and content restrictions on “a
substantial amount of constitutionally protected First Amendment activity,” (id. ¶ 148).
Second, Caramore alone alleged that Part 123 impermissibly prohibited her from
wearing Chiefs apparel on school grounds or at school functions. (Massapequa Am.
Compl. ¶¶ 150–71). Defendants moved to dismiss all the claims, while the plaintiffs
sought a preliminary injunction.
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Judge Brodie dismissed the First Amended Complaint in its entirety but granted
Caramore leave to amend her First Amendment freedom of speech and overbreadth
claims, if she refiled them in her personal capacity. See Dismissal Order, 2025 WL
929710, at *35.6
Judge Brodie concluded that Massapequa and the Board, as municipal entities,
lacked the capacity to sue New York State, and they failed to plead that any of the
exceptions to that prohibition applied. Id. at *8–*9.
As for Caramore, who sued as both a Vice President of the Board and as a parent
of a current District student, Judge Brodie first dismissed her vagueness challenge. Id.
at *13–*17. Caramore failed to plausibly allege that Part 123 provided insufficient notice
or that it was arbitrary or discriminatory as applied: it did not allege “that no set of
6 Judge Brodie’s Dismissal Order addressed three related lawsuits together.
Along with Massapequa’s case, her decision dismissed one case brought by the
Wantagh and Wyandanch School Districts, and another brought by the Connetquot
Central School District. See Wantagh Union Free Sch. Dist. v. N.Y. State Bd. of Regents, No.
23-CV-7299, 2025 WL 929710 (E.D.N.Y. Mar. 27, 2025); Connetquot Cent. Sch. Dist. v. N.Y.
State Bd. of Regents, No. 23-CV-7696, 2025 WL 929710 (E.D.N.Y. Mar. 27, 2025). Though
the individual Board member plaintiffs across all the cases were granted leave to amend
and bring their claims in an individual capacity, they elected to not do so. The
Connetquot Plaintiffs appealed to the Second Circuit, but the District and Board then
withdrew their claims; the appeal is proceeding only with respect to Plaintiff Jaclyn
Napolitano-Furno in her official and individual capacities. See Order Granting Mot. to
Withdraw Appeal, Napolitano-Furno v. N.Y. State Bd. of Regents, No. 25-1137 (2d. Cir.
Sep. 24, 2025), Dkt. No. 33. The Wantagh and Wyandanch appeal is pending. See
Scheduling Order, Wantagh Union Free Sch. Dist. v. N.Y. State Bd. of Regents, No. 25-1136
(2d. Cir. Aug. 20, 2025), Dkt. No. 26. There was also a fourth case, but Amityville
voluntarily dismissed its case. See Notice of Voluntary Dismissal, Amityville Union Free
Sch. Dist. v. N.Y. State Bd. of Regents, No. 23-CV-8011 (E.D.N.Y. Oct. 14, 2024), Dkt. No.
42.
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circumstances exists under which the regulation would be valid.” Id. at *16–*17
(quotation omitted).
As to Caramore’s overbreadth challenge, Judge Brodie ruled that she failed to
allege that Part 123 implicated protected speech. Id. at *20 (“[She has] failed to plead
sufficient facts . . . [that] the conduct of such school officials and employees is on a
matter of public concern and therefore within the scope of the First Amendment’s
protection.”). In light of these pleading deficiencies, Judge Brodie dismissed the claims
but granted Caramore leave to amend. Id.
With respect to her other First Amendment claim, Caramore “spoke as [a
private] citizen[],” when she wore Chiefs apparel at school events, which would
ordinarily entitle her to bring a First Amendment challenge to Part 123. Dismissal Order,
2025 WL 929710, at *26. However, Caramore failed to allege she was “speaking on a
matter of public concern,” which made it impossible for her to claim a First
Amendment violation. Id. at *27. But she was granted leave to amend. Id.
The Court dismissed the federal separation-of-powers claim because plaintiffs
failed to make any arguments in support of it and because it does not apply against the
states. Id. at *28 n.27. Finally, the Court declined to exercise supplemental jurisdiction
over the state law claims, including the separation-of-powers claim and the State
Administrative Procedure Act claims. Id. at *4, *28.
Now pending before the Court is the Massapequa Plaintiffs’ motion for leave to
file their PAC, which seeks a declaratory judgment annulling Part 123. (See
Massapequa PAC ¶ 1). The PAC sets out the histories of Native American tribes in the
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surrounding area, noting that the Massapequa name is derived from Native roots. (Id.
¶ 37). Plaintiffs allege that the Chiefs mascot was created around 1925 alongside the
opening of the first school in Massapequa, and it depicts Sachem Tackapausha, a
revered chief of one of the 13 tribes known as the Massapequas. (Id. ¶¶ 39–43).
Massapequa has no “mascot” beyond the “logo”: “there is no Chiefs costume.” (Id.
¶ 45). The PAC recites a statement from the Board that the Chiefs mascot “honors Chief
Tackapausha,” and notes that the mascot is principally about “honor and respect.” (Id.
¶¶ 57–58).
The PAC contains three First Amendment claims. Massapequa, the Board, and
Caramore (in her individual capacity) reassert a First Amendment overbreadth claim,
alleging that Part 123 “will chill the expressive activity of every future District
employee” who cannot wear Chiefs apparel on school property. (Massapequa PAC
¶¶ 121, 116–26 (“First Cause of Action”)).7 Caramore also brings her own separate First
Amendment claim in her individual capacity, alleging that Part 123 infringes on her
expressive conduct of wearing Chiefs apparel, which she affiliates “with pride and
respect,” and which she has done for the last two years “to protest Part 123” and
“support the District’s ongoing fight to maintain the Chiefs name and logo.” (Id.
¶¶ 141, 154, 127–67 (“Second Cause of Action”)). Finally, each of the Massapequa
Plaintiffs brings what can be described as a political speech First Amendment claim,
alleging that Part 123 restricts incumbent Board members who are not members of a
7 Although the Massapequa PAC does not specify which Plaintiffs bring the first
cause of action, as it does for each subsequent claim, the Court analyzes the claim as
brought on behalf of Massapequa, its Board, and Caramore.
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tribal nation from “engaging in protected political expression during campaigns,
including wearing apparel . . . bearing the school’s Indigenous name” at traditional
campaign forums like school events. (Id. ¶¶ 171, 168–213 (“Third Cause of Action”)).
Caramore brings this Third Cause of Action in her individual capacity.8
The PAC otherwise departs from the dismissed Amended Complaint in several
ways. First, the New York State Board of Regents is no longer a defendant—instead,
only its members are named, all in their official capacity. (Massapequa, Proposed Second
Am. Compl. with Redlines filed May 19, 2025, attached to Mot. for Leave as Ex. B, Dkt.
No. 66-3 at 1). Second, there are six new causes of action for violations of: Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d, (Massapequa PAC ¶¶ 183–213); Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), (id. ¶¶ 214–31); 42 U.S.C. § 1981,
(id. ¶¶ 232–46); the dormant Commerce Clause, U.S. Const. art. I, § 8, cl. 3, (id. ¶¶ 247–
61); the Indian Commerce Clause, U.S. Const. art. I, § 8, cl. 3, (id. ¶¶ 262–76); and the
state Bill of Attainder Clause, U.S. Const. art. I, § 10, cl. 1, (id. ¶¶ 277–91). These claims
are brought by all three Massapequa Plaintiffs—the District, its Board, and Caramore
8 The PAC is confusing and unclear at times as to which claims Caramore brings
in her individual capacity, as opposed to her official capacity as a Board member. The
Court infers, and proceeds on the basis, that she is bringing her overbreadth claim—the
First Cause of Action—in her individual capacity, because Judge Brodie permitted her
to replead that claim only in that capacity. See Dismissal Order, 2025 WL 929710, at *35.
The Second Cause of Action is labeled as being brought in her individual capacity.
(Massapequa PAC at 28). The Third Cause of Action, the political speech claim, is
unlabeled, (id. at 36), but the other remaining claims are brought in her official capacity,
and labeled as such, (e.g., id. at 39). Moreover, the political speech claim is also brought
by the Board, and it would make no sense to have Caramore also bring the same claim
in her official capacity. See infra p. 15 n.9. So, it is interpreted as being brought in her
individual capacity.
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(but in her official capacity as a member of the Board).9 The rest of the claims dismissed
in Judge Brodie’s Order—the vagueness, separation-of-powers, and other state
administrative law claims—do not reappear in the PAC.
III. 	The NAGA Agreement and Lawsuit
On May 15, 2025, Massapequa executed an agreement with NAGA (the
“Agreement”). (Massapequa PAC ¶ 100). Two weeks later, NAGA and David
Finkenbinder, (collectively, the “NAGA Plaintiffs”) brought suit against the New York
State Board of Regents and its members in their official capacity. (Native Am. Guardian’s
Assoc. v. N.Y. State Bd. of Regents (“NAGA”), No. 25-CV-3008, Compl. filed May 29, 2025
(“NAGA Compl.”), Dkt. No. 1).
NAGA is a non-profit organization founded in 2017 and incorporated and
headquartered in North Dakota. (Id. ¶ 7). The organization’s mission is to “increase the
public awareness and education about Native American history and culture in public
institutions, and to promote the respectful use of Native America names and imagery in
public discourse.” (Id.). NAGA asserts it is bringing this action on behalf of itself and
its members, who include Native American students, parents, educators, community
leaders, and non-Native individuals who share the organization’s goals, whom NAGA
9 Unless otherwise noted, when the Court uses the specific term “Massapequa
and the Board,” it is referring to the District, its Board, and Caramore in her official
capacity, because a suit by Caramore in her official capacity is coextensive with any suit
brought by the Board. See Kearns v. Cuomo, 981 F.3d 200, 212 (2d Cir. 2020) (analyzing
standing for suit brought by County Clerk in official capacity through injury to the
Clerk’s Office); Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 141–48 (2d Cir.
2021) (analyzing Department of Financial Services’s standing in suit brought by
Superintendent). Caramore never alleges that she has the consent or authorization from
the Board to bring suit on their behalf.
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claims are “directly impacted by the enforcement of Part 123.” (Id. ¶¶ 8, 11). No
member of the organization is identified other than NAGA’s co-plaintiff, Finkenbinder,
who is a Board Member of NAGA, an enrolled tribal member of the Crow Creek Sioux
Tribe in South Dakota, and a current resident of West Coxsackie, New York. (Id. ¶ 18).
Though NAGA submitted with its briefs affidavits by two other individuals affiliated
with the organization, no employee, NAGA Board member, or student affiliated with
Massapequa is identified by name in its complaint, nor does NAGA allege, even in
conclusory fashion, any member’s direct connection to the District, its Board, or Part
123.
Central to NAGA’s Complaint, and also relevant to the Massapequa case, is the
Agreement that NAGA and Massapequa executed on May 15, 2025. (Id. ¶ 13). The
Agreement, which is attached as the sole exhibit to the NAGA Complaint, provides
that:
So long as the District continues its current educational programming and
instruction concerning Native American history and culture as outlined in
the attached Exhibit “A” and the obligations outlined in this Agreement,
NAGA and the Board of Directors of NAGA fully permit, consent to,
support, and authorize the District in its continued use of the District’s
Indigenous NIL for all school-related purposes, including but not limited
to educational uses, athletic uses, community uses, and in any new
programs hereafter developed. 	The District shall meet with a NAGA
representative, either in person or remotely, at least once per year to review
and discuss the educational programming and instruction. In exchange for
NAGA’s and the Board of Directors’ permission, consent, support, and
authorization of the District’s use of the Indigenous NIL, the District also
commits that it will continue to use the “Chiefs” name and logo as the
District’s official name and logo for all school-related purposes, including
but not limited to educational uses, athletic uses, community uses, and in
any new programs hereafter developed. 	In the event that the District
discontinues all the educational programing outlined in the attached
Exhibit “A” or fails to continue using the “Chiefs” name, mascot, and logo,
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NAGA’s and the Board of Directors’ permission, consent, support, and
authorization for the District’s continued use of its Indigenous NIL rights
will automatically be withdrawn by operation of this Agreement. In such
an event, NAGA and the Board of Directors of NAGA will have no cause
of action of any kind and nature to compel or require the District to provide
any kind of educational programing or instruction.
(NAGA, Mem. of Agreement dated May 15, 2025 (“NAGA Agreement”), attached to
NAGA Compl. as Ex. A, Dkt. No. 1-1 ¶ 1). The other provisions generally allege the
exchange of “good, valid, and sufficient Consideration,” (id. ¶ 2), expressly permit
either party to “terminat[e] this Agreement upon 30 days written notice to the other,”
(id. ¶ 3), and allow for severance of the Agreement if any part is held invalid, though if
the paragraph above is held invalid, either party “may at their option cancel this
Agreement,” (id. ¶ 5). There is also a New York choice-of-law provision. (Id. ¶ 6). The
Agreement is signed by NAGA co-founder Eunice Davidson (one of the
aforementioned affiants), NAGA Board Member Crystal Tso, Massapequa District
Superintendent Dr. William Brennan, and Board President Kerry Wachter, and Vice
President Caramore. (Id. at 3–4). The NAGA Plaintiffs assert in briefing that
Finkenbinder is a party to the contract because he is a NAGA Board member, (e.g.,
NAGA, Pls.’ Opp’n to Mot. to Dismiss & Reply in Supp. of Prelim. Inj. dated Sep. 4, 2025
(“NAGA Pls.’ Opp’n”), Dkt. No. 25 at 6), and the NAGA Board of Directors itself is a
party to the Agreement, however Finkenbinder sues here as an individual, not in his
capacity as a NAGA Board member, (NAGA Compl. ¶ 19). Finally, the exhibit
referenced in the Agreement outlines a general plan for lessons focused on Native
American history and culture by grade level. (NAGA Agreement at 5).
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The Agreement and NAGA’s Complaint do not assert that NAGA has any actual
rights to the Chiefs mascot. They do not, for example, allege that NAGA created the
mascot, owns or possesses any rights to it, or even that NAGA has the ability or right to
license it. Indeed, NAGA’s Complaint suggests that “Chiefs” has been a mascot
throughout Massapequa for decades—used by the Chamber of Commerce and the Fire
Department, among others—suggesting it long ago passed into the public domain, with
no one claiming rights to it. (NAGA Compl. ¶¶ 72–75).
The NAGA Plaintiffs allege that the “Agreement requires that the Massapequa
School District continue to use its moniker ‘the Chiefs,’” and that in return, “the leaders
of NAGA are committed to providing instruction to students regarding the Native
American history and culture.” (Id. ¶¶ 14–15). They contend that “[a]s applied, Part
123 nullifies the existing NAGA-MSD Agreement.” (Id. ¶ 166). Massapequa and the
Board likewise claim that they are unable to comply with both the Agreement and the
requirements of Part 123. (Massapequa PAC ¶ 111). If forced to comply with Part 123,
they allege they will incur substantial costs of replacing the Chiefs mascot, the erosion
of community identity, and legal exposure for breaching the Agreement and for
discrimination. (Id. ¶ 114).
NAGA and Finkenbinder’s Complaint is otherwise very similar to the
Massapequa pleading. The factual allegations are nearly identical to those in the
Massapequa PAC with a few minor omissions or additions. (See NAGA Compl. ¶ 53
n.2 (adopting the Massapequa Plaintiffs’ Facts); compare Massapequa PAC ¶¶ 29–89,
with NAGA Compl. ¶¶ 54–116). For example, NAGA and Finkenbinder’s Complaint
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omits a few paragraphs specific to Massapequa’s mission not relevant to NAGA,
(Massapequa PAC ¶¶ 55–56), and the NAGA Complaint adds a footnote about the
Kansas City Chiefs football team, (NAGA Compl. ¶ 78 n.3). NAGA’s Complaint also
adds facts about the complaint it filed with the U.S. Department of Education Office for
Civil Rights (“OCR”) against the Board of Regents for discrimination in implementing
Part 123. (Id. ¶ 121). NAGA and Finkenbinder reported that OCR formally opened an
investigation that was pending when their Complaint was filed. (Id. ¶¶ 122–23).
NAGA and Finkenbinder seek a declaratory judgment annulling Part 123 and an
injunction against its enforcement. (Id. ¶ 3). Their Complaint includes five counts
(some of which contain multiple causes of action), alleging that Part 123: (1) violates the
Fourteenth Amendment Equal Protection Clause in violation of 42 U.S.C. § 1983, 42
U.S.C. § 1981, and Article I, § 11 of the New York Constitution, (NAGA Compl. ¶¶ 125–
38); (2) deprives NAGA and Finkenbinder of free speech rights under the First
Amendment in violation of 42 U.S.C. § 1983, and under Article I, § 8 of the New York
Constitution, (id. ¶¶ 139–50); (3) is unconstitutionally vague and an improper
delegation under the Fourteenth Amendment’s Due Process clause in violation of 42
U.S.C. § 1983, (id. ¶¶ 151–57); (4) violates the dormant Commerce Clause and the Indian
Commerce Clause, (id. ¶¶ 158–68); and (5) violates Title VI of the Civil Rights Act of
1964, (id. ¶¶ 169–74).
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NAGA and Finkenbinder moved for a preliminary injunction on July 7, 2025 to
preserve the Agreement, which they alleged was subject to invalidation by Part 123.10
(NAGA, Pls.’ Mot. for Prelim. Inj. (“NAGA Pls.’ First PI Mot.”), Dkt. No. 16 at 11).
Shortly thereafter, the Court required the parties to brief several questions related to the
law-of-the-case doctrine and case management practices. (NAGA, Order dated July 9,
2025, Dkt. No. 17 at 2). When that briefing was complete, the Court directed the parties
to submit a proposed briefing schedule for the motion for a preliminary injunction and
any motion to dismiss from the Defendants. (NAGA, Order dated July 28, 2025).
NAGA and Finkenbinder filed an amended motion for a preliminary injunction on
August 8, 2025, (NAGA, Pls.’ Am. Mot. for Prelim. Inj. (“NAGA Pls.’ Am. PI Mot.”),
Dkt. No. 21), and full briefing on the injunction and Defendants’ motion to dismiss was
completed thereafter.
DISCUSSION
I. 	The Massapequa Plaintiffs’ Motion to Amend
The Court first turns to the Massapequa Plaintiffs’ motion to amend and file the
PAC as the operative pleading. After the period to amend as of right has passed,
motions to amend pleadings are governed by two standards. The first, a “liberal” and
10 None of the Massapequa or NAGA Plaintiffs point to any enforcement of Part
123 against them. The latest update brought to the Court’s attention is that the SED
denied Massapequa’s request for an extension of the compliance deadline on June 20,
2025. (NAGA, Pls.’ Am. Mot. for Prelim. Inj. dated Aug. 8, 2025 (“NAGA Pls.’ Am. PI
Mot.”), Dkt. No. 21-1 at 6). NAGA does claim that Part 123 “has already been . . .
compelling districts like Connetquot to eliminate Native symbols.” (NAGA Pls.’
Opp’n” at 12). There is, however, no indication of enforcement with respect to
Massapequa—the only District relevant in this case—and no citation or evidence to
support the claim that Part 123 has been used to void the Agreement.
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“permissive” standard, Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021), directs
courts to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The
second permits motions to amend only upon a showing of “good cause.” Id. R. 16(b)(4).
“The [Rule 15] period of ‘liberal’ amendment ends if the district court issues a
scheduling order setting a date after which no amendment will be permitted.”
Sacerdote, 9 F.4th at 115. If the court issues a Rule 16 order that explicitly “state[s] that
no amendment will be permitted” after a date certain, the moving party must
demonstrate good cause for permitting the amendment. Id. at 115–16.
If, however, the district court’s Rule 16 order does not set a date after which
motions to amend are not permitted (for example, by simply setting a deadline for
amended pleadings to be filed), there is no order “trigger[ing] the stricter Rule 16(b)(4)
‘good cause’ standard.” Id. at 115. And therefore, any motions are governed solely by
the more liberal Rule 15 standard.
The Rule 16 Scheduling Order in this case stated that “[a]ny future motions to
amend the pleadings on or after 3/30/2024 will be denied absent a showing of good
cause.” (Massapequa, Min. Entry dated Jan. 22, 2024, Dkt. No. 25); cf. Sacerdote, 9 F.4th at
116 (“District courts wishing to evaluate motions for leave to amend under Rule 16 after
a particular date need only write their scheduling orders consistent with that intent, and
state that no amendment will be permitted after that date in order to trigger the Rule 16
standard.”). However, the Court’s subsequent Dismissal Order contemplated further
amendment. Dismissal Order, 2025 WL 929710, at *35. That Dismissal Order, directing
Plaintiffs to file an amended complaint within 30 days, superseded the prior Rule 16
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order in the case and set a new deadline. See Sacerdote, 9 F.4th at 115–16. Plaintiffs were
granted two extensions to file their Amended Complaint. (Massapequa, Order dated
Apr. 25, 2025; Massapequa, Order dated May 8, 2025). Thus, though the motion to
amend was not filed until May 19, 2025, the Court considers it submitted within the
deadline for amendment.
Accordingly, the Court considers the Massapequa Plaintiffs’ motion under the
more liberal Rule 15 standard, which provides that leave to amend should be “freely
give[n].” Fed. R. Civ. P. 15(a)(2). Under that Rule, “the only ‘grounds on which denial
of leave to amend has long been held proper’ are upon a showing of ‘undue delay, bad
faith, dilatory motive, [or] futility.’” Sacerdote, 9 F.4th at 115 (quoting Loreley Fin. (Jersey)
No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015)). Delay, bad faith, and
futility are addressed in turn below.
A. 	Delay and Bad Faith
Defendants contend that the Massapequa PAC will prejudice them because of
the “late stage of the litigation,” the timing of Part 123’s effective date, and the inclusion
of new and surprising facts and causes of action. (Massapequa, Defs.’ Mem. in Opp’n to
Mot. for Leave to Amend Compl. filed June 27, 2025 (“Massapequa Defs.’ Opp’n”), Dkt.
No. 72 at 5–8). But the Massapequa Plaintiffs moved to amend their complaint less than
two months after the Dismissal Order, which expressly contemplated amendment, and
within four days of the emergence of new facts—namely, the execution of the
Agreement. Thus, while true that Part 123’s effective date has been known to the
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Massapequa Plaintiffs for years, Defendants have not explained, and the Court does not
see, how they are prejudiced.
While some additional discovery may be required to address new issues, “the
adverse party’s burden of undertaking discovery, standing alone, does not suffice to
warrant denial of a motion to amend a pleading.” U.S. ex rel. Mar. Admin. v. Cont’l Ill.
Nat. Bank & Tr. Co. of Chicago, 889 F.2d 1248, 1255 (2d Cir. 1989). And beyond being a
“complete surprise,” (Massapequa Defs.’ Opp’n at 8), Defendants have not explained
how the addition of new claims, based on new facts that did not exist earlier, would
prejudice them with unusual discovery burdens.
And the only caselaw Defendants provide supporting that argument is
inapposite. (Massapequa Defs.’ Opp’n at 6–7 (citing Presbyterian Church Of Sudan v.
Talisman Energy, Inc., 582 F.3d 244, 267 (2d Cir. 2009) (plaintiffs waited until the eve of
summary judgment practice to move to amend and could not meet a Rule 16 standard);
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 201 (2d Cir. 2007) (plaintiffs moved to
amend more than seven months after becoming aware of the need to do so);
Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003) (plaintiffs moved to amend
based on a state court decision issued over a year prior))). Accordingly, the Court finds
no bad faith or prejudice that precludes amendment.
B. 	Futility
Although the Court may “decline to engage in a detailed futility analysis where
the Court finds that these arguments are better suited for consideration in the context of
a motion to dismiss,” Env’t Sols. Assocs. Grp., LLC v. Conopoco, Inc., No. 20-CV-10699,
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2021 WL 2075586, at *2 (S.D.N.Y. May 24, 2021), the Court exercises its discretion to
conduct such analysis here in light of the parties’ extensive briefing in the Massapequa
cases and the related case brought by NAGA and Finkenbinder.
A “motion to amend will be considered futile if the Court determines, ‘as a
matter of law, that proposed amendments would fail to cure prior deficiencies or to
state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.’” Charlot v.
Ecolab, Inc., 97 F. Supp. 3d 40, 61 (E.D.N.Y. 2015) (quoting Panther Partners Inc. v. Ikanos
Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)) (adopting report and recommendation);
see also, e.g., Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 260 (2d Cir. 2002) (reversing
the district court’s order granting plaintiff leave to amend complaint where his
proposed new claim “[wa]s barred by substantive contract law”).11
“The purpose of a motion to dismiss for failure to state a claim under Rule
12(b)(6) is to test the legal sufficiency of . . . claims for relief.” Amadei v. Nielsen, 348 F.
Supp. 3d 145, 155 (E.D.N.Y. 2018) (citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).
In deciding such a motion, the Court must “construe the complaint liberally, accepting
all factual allegations in the complaint as true, and drawing all reasonable inferences in
the plaintiff’s favor.” Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (quotations
and alteration omitted); Amadei, 348 F. Supp. 3d at 155 (“[W]hen reviewing a complaint
on a motion to dismiss for failure to state a claim, the court must accept as true all
11 On a motion to amend—which employs the same standard to evaluate futility
as a motion to dismiss, Charlot, 97 F. Supp. 3d at 61—a court may consider any
document “incorporated in the complaint by reference,” “integral to the complaint,” or
subject to “judicial notice.” Clark v. Hanley, 89 F.4th 78, 93 (2d Cir. 2023) (quotations
omitted).
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allegations of fact in the complaint and draw all reasonable inferences in favor of [the
non-moving party].”).
“To survive a motion to dismiss [pursuant to Rule 12(b)(6)], a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. A complaint must contain more than “naked
assertion[s] devoid of further factual enhancement.” Id. (quotations omitted). In other
words, a plausible claim contains “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.; Fed. R.
Civ. P. 8(a)(2). “Factual allegations must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact)[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). The determination of whether a party has alleged a plausible claim is “a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679.
This pleading requirement “does not impose a probability standard at the
motion-to-dismiss stage.” Mosaic Health, Inc. v. Sanofi-Aventis U.S., LLC, -- F.4th --, 2025
WL 2921807 at *4 (2d Cir. Oct. 15, 2025) (noting that plausibility does not equate to
probability). And “on a Rule 12(b)(6) motion it is not the province of the court to
dismiss the complaint on the basis of the court’s choice among plausible alternatives.
Assuming that [plaintiff] can adduce sufficient evidence to support its factual
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allegations, the choice between or among plausible interpretations of the evidence will
be a task for the factfinder.” Id. (quotations omitted).
Since the futility analysis for a motion to amend is the same as the standard for
motions to dismiss, and because of the substantial overlap in the legal claims asserted,
the Court analyzes the motion to amend in Massapequa and the motion to dismiss in the
NAGA case together.
II. 	Massapequa and the Board’s Capacity to Sue
A threshold issue—capacity to sue—derails some of Massapequa and the Board’s
claims at the outset.
“Capacity has been defined as a party’s personal right to come into court . . .
capacity is conceived of as a procedural issue dealing with the personal qualifications of
a party to litigate and typically is determined without regard to the particular claim or
defense being asserted.” 6A Charles Alan Wright & Arthur R. Miller et al., Fed. Prac. &
Proc. Civ. § 1559 (3d ed. 2025) (emphasis added). It is bedrock, established New York
law that “‘municipalities and other local governmental corporate entities and their
officers lack capacity to mount constitutional challenges to acts of the State and State
legislation.’” Dismissal Order, 2025 WL 929710, at *8 (collecting cases) (quoting City of
New York v. State of New York, 86 N.Y.2d 286, 289 (1995)). “Constitutionally as well as a
matter of historical fact, municipal corporate bodies—counties, towns and school
districts [like Massapequa]—are merely subdivisions of the State, created by the State
for the convenient carrying out of the State’s governmental powers and responsibilities
as its agents.” City of New York, 86 N.Y.2d at 289–90. Massapequa and the Board exist
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because they were created by New York State itself. They both are a “creature of the
state,” City of Trenton v. State of New Jersey, 262 U.S. 182, 187 (1923), and so for either to
sue New York State (or its arm, the Board of Regents) is akin to a party suing itself. See
Dismissal Order, 2025 WL 929710, at *8 (“Municipal entities . . . ‘cannot have the right to
contest the actions of their principal or creator affecting them in their governmental
capacity or as representatives of their inhabitants.’” (quoting City of New York, 86 N.Y.2d
at 289–90)). Perhaps in recognition of this, Caramore has now dropped several of her
official capacity claims from her first lawsuit. As a municipal official, she cannot sue the
State of New York or a state subdivision, like the Board of Regents, in her official
capacity. See In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 846 F.3d 58, 63
(2d Cir. 2017) (“[M]unicipalities and other local governmental corporate entities and
their officers lack capacity to mount constitutional challenges to acts of the State.”
(emphasis added) (quotation omitted)). And Massapequa has dropped its Fourteenth
Amendment claim, which Judge Brodie found could not be asserted, because it could
not sue the State for violations of the Fourteenth Amendment. Dismissal Order, 2025 WL
929710, at *8–*9. Those same principles require dismissal of several of Massapequa and
the Board’s other claims now.
There are recognized exceptions to this capacity rule, including, as relevant to
this case, the proscription exception: “where the public corporation asserts that, if it is
obliged to comply with the statute, that very compliance will force the corporation to
violate a constitutional proscription.” Id. at *8 (quoting In re World Trade Ctr., 846 F.3d
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at 63–64).12 For example, Massapequa and the Board, if obligated to comply with Part
123, could potentially be forced to then violate the First Amendment rights of school
employees or officials. Massapequa and the Board failed to allege that this exception
applied to them in the first round of this case. Id. at *9.
The other exception relevant here, distinct from the four enumerated by the New
York Court of Appeals, arises from the Supremacy Clause. “[A] subdivision may sue its
state under the Supremacy Clause.”13 Tweed-New Haven Airport Auth. v. Tong, 930 F.3d
65, 73 (2d Cir. 2019); see also Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 628–29 (10th
Cir. 1998) (explaining that municipalities may not sue their creating state under
provisions protecting individual rights, but could assert structural challenges under the
Supremacy Clause). In Tong, the Second Circuit explained that “[t]he view that
subdivisions were broadly prevented from suing a state was put to rest” in Gomillion v.
Lightfoot, 364 U.S. 339 (1960). 930 F.3d at 72. “If the Supremacy Clause means anything,
it means that a state is not free to enforce within its boundaries laws preempted by
federal law. Lawsuits invoking the Supremacy Clause are one of the main ways of
ensuring that this does not occur.” Id. at 73. In Sections A and B below, the Court
12 The other exceptions are: “(1) where a public corporation has express statutory
authorization to bring suit; (2) where the legislation adversely affects a public
corporation’s proprietary interest in a specific fund of moneys; [and] (3) where the
statute impinges upon ‘Home Rule’ powers of a public corporation constitutionally
guaranteed under article IX of the New York State Constitution.” In re World Trade Ctr.,
846 F.3d at 63.
13 Tong, however, did not disturb prior Second Circuit caselaw that a municipal
entity may not sue its state to vindicate its own rights under the Fourteenth
Amendment. 930 F.3d at 73 n.7 (citing Aguayo v. Richardson, 473 F.2d 1090, 1100 (2d Cir.
1973); City of New York v. Richardson, 473 F.2d 923, 929 (2d Cir. 1973)).
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discusses Massapequa’s capacity to bring its renewed First Amendment claims, and
then the six new federal claims brought for the first time in the Massapequa PAC.
A. 	First Amendment Claims
The Massapequa PAC contains no new allegation in its overbreadth claim that
Massapequa or its Board will be forced to violate the rights of its employees or
officials—it alleges only, in general terms, that free expression is chilled by Part 123.
(See Massapequa PAC ¶ 121). In their briefing, they claim that they have now pled
prescription. (Massapequa, Pls.’ Reply in Supp. of Mot. for Leave to file Second Am.
Compl. filed July 7, 2025 (“Massapequa Pls.’ Reply”), Dkt. No. 75 at 6 (identifying
¶¶ 72–73, 90, 117, & 121–24)). Hardly. Those paragraphs are identical to the allegations
in the prior Amended Complaint that the Court found lacking. (Compare Massapequa
Am. Compl. ¶¶ 70–71, 89, with Massapequa PAC ¶¶ 72–73, 90 (containing identical
descriptions of what Part 123 requires the District and Board to do)). The conclusion
that those allegations are insufficient is law of the case and governs here. Dismissal
Order, 2025 WL 929710, at *9 (“The Court finds that School District Plaintiffs and School
Board Plaintiffs also lack capacity to sue for violations of the First Amendment because
they have not alleged that, if obliged to comply with Part 123, they would violate the
constitutional rights of school officials and employees.”); In re Peters, 642 F.3d 381, 386
(2d Cir. 2011) (“The law of the case doctrine, although not binding, ‘counsels a court
against revisiting its prior rulings in subsequent stages of the same case absent “cogent”
and “compelling” reasons,’ including . . . ‘the need to correct a clear error or prevent
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manifest injustice.’” (quoting Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008))); see also
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).
What the PAC does add—more detailed allegations of how Part 123 sweeps too
broadly (Massapequa PAC ¶¶ 90, 117, 121–24)—are not facts or information about
Massapequa or the Board’s alleged part in violating the rights of its employees or
officials. There are two conclusory references to Massapequa’s employees and officials.
These references are identical to what was in the prior complaint, noting that the
District has 650 employees and Part 123 prevents them (and any future employees)
from wearing Chiefs apparel on school property. (Id. ¶¶ 120–21). These references are
not allegations that Massapequa and the Board will be forced to police and restrict the
speech of their employees, but rather that Part 123 infringes their employees’ rights
directly. Such allegations fail to set forth a proscription exception to the capacity to sue.
See., e.g., Blakeman v. James, No. 24-CV-1655, 2024 WL 3201671, at *14 (E.D.N.Y. Apr. 4,
2024) (finding proscription not plead where “County Plaintiffs broadly argue that
rescission of the Executive Order would . . . ‘violat[e] the constitutional rights of women
as a protected class.’”).
The same is true for Massapequa and the Board’s other First Amendment claim
based on political speech. They assert that Part 123 violates the First Amendment rights
of incumbent Board members and District employees or officers that run for the Board.
(Massapequa PAC ¶ 169). The political speech of incumbent Board candidates (or other
District employees running for a Board position) is allegedly restricted because Part 123
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prohibits them from using any Indigenous mascot on their apparel or campaign
materials when on school grounds or at school functions. (Id. ¶¶ 170–72).
The political speech claim lacks a single allegation as to how Massapequa and the
Board will be forced to participate in the violation of the political speech rights of the
candidates for Board positions. Though Plaintiffs do make new allegations about
proscription in reply, “Plaintiffs cannot amend their Complaint through their motion
papers.” Dismissal Order, 2025 WL 929710, at *27 n.25 (citing Wright v. Ernst & Young
LLP, 152 F.3d 169, 178 (2d Cir. 1998)). In any event, the brief only points either to
language identical to the Amended Complaint that was found insufficient, (see
Massapequa PAC ¶¶ 72, 73), or new language that alleges the unconstitutionality of
Part 123 devoid of any reference to Massapequa’s and the Board’s involvement in
enforcement, (see id. ¶¶ 168–82).
It would have been easy enough to plead proscription for this claim: Part 123
requires public schools like Massapequa to prohibit its officers—like School Board
members—from using Indigenous mascots on “school property” or “at a school
function.” 8 NYCRR § 123.5. Massapequa and the Board could have alleged that
current Board members or school employees, whether as part of a Board election
campaign or Board or community meeting, planned to use (or had in the past used) the
Chiefs mascot as part of their political activities; and that Part 123 would require
Massapequa and the Board to cease and silence them. Such basic factual allegations are
missing from the PAC. And, thus, Massapequa and the Board lack the capacity to bring
their First Amendment political speech claim against Defendants.
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B. 	Massapequa’s New Claims: Title VI and VII, Section 1981, Dormant and
Indian Commerce Clause, and Bill of Attainder
Massapequa and the Board’s other constitutional claims for violations of the
dormant Commerce Clause (Seventh Cause of Action), Indian Commerce Clause
(Eighth Cause of Action), as well as the federal statutory claims for violation of Title VI
(Fourth Cause of Action), Title VII (Fifth Cause of Action), and Section 1981 (Sixth
Cause of Action) are asserted under the Supremacy Clause and, therefore, fall under the
Tong exception.14 (See Massapequa PAC ¶¶ 212, 230, 244, 259, 274 (invoking the
Supremacy Clause for its Title VI, Title VII, Section 1981, dormant Commerce Clause,
and Indian Commerce Clause claims)). And Defendants do not challenge these claims
on capacity grounds. The Bill of Attainder claim (Ninth Cause of Action) does not
expressly invoke the Supremacy Clause, nor is it a claim that would fit within the
proscription exception. Still, Defendants do not contest Massapequa’s capacity to bring
the claim. Thus, the Court concludes these claims are not barred by incapacity to sue.15
14 Tong, which itself concerned preemption by a federal statute (the Federal
Aviation Act), appears to make no distinction between statutory and constitutional
claims, so long as the claim is brought under the Supremacy Clause. 930 F.3d at 73.
15 Although the Court concludes that Massapequa and the Board lack the
capacity to bring certain claims, this opinion still examines whether they have standing.
It does so for two practical reasons. First, although the Supreme Court and the Second
Circuit have made clear that standing and capacity are separate inquiries, neither has
stated which one must be analyzed first, but both have held that standing is a threshold
subject-matter jurisdiction question that precedes any analysis of the merits. E.g., In re
World Trade Ctr., 846 F.3d at 66 n.6 (“Indeed, the Court of Appeals has drawn a
distinction elsewhere between ‘standing’ and ‘capacity to sue,’ stating that ‘[t]he issue
of lack of capacity to sue does not go to the jurisdiction of the court, as is the case when
the plaintiffs lack standing.’” (quoting City of New York, 631 N.Y.S.2d at 652)). Second,
Defendants, while identifying the capacity-to-sue argument in the context of First
Amendment claims, fail to raise it in response to the other claims.
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III. 	Eleventh Amendment Immunity
Though the Massapequa Plaintiffs dropped the New York State Board of Regents
from their suit and now only name its members as defendants, the NAGA Plaintiffs
elected to name both the Board of Regents and its members as defendants. (NAGA
Compl. ¶ 20). Unfortunately, neither NAGA nor Defendants elected to call the Court’s
attention to the obvious Eleventh Amendment sovereign immunity problems presented
by such allegations.
The Eleventh Amendment generally bars suit in federal court “against a state or its
agencies absent a waiver of immunity or congressional legislation specifically
overriding immunity.” Mamot v. Bd. of Regents, 367 F. App’x 191, 192 (2d Cir. 2010); see
also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100–01 (1984) (noting
immunity extends to both damages and injunctive relief); see U.S. Const. amend XI
(“The Judicial power of the United States shall not be construed to extend to any suit . . .
commenced or prosecuted against one of the United States[.]”). Eleventh Amendment
immunity also extends to “state officials sued in an official capacity.” Bell v. Kaleida
Health, No. 25-0366, 2025 WL 2938354, at *2 (2d Cir. Oct. 16, 2025).
This immunity, though, is not inviolate. States may waive their own immunity,
or Congress may abrogate it pursuant to its Fourteenth Amendment power. Beaulieu v.
Vermont, 807 F.3d 478, 483 (2d Cir. 2015). The Supreme Court has also recognized, in Ex
parte Young, “‘a narrow exception’ to Eleventh Amendment immunity ‘that allows
certain private parties to seek judicial orders in federal court preventing state executive
officials from enforcing state laws that are contrary to federal law.’” Unkechaug Indian
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Nation v. Seggos, 126 F.4th 822, 829 (2d Cir. 2025) (quoting Silva v. Farrish, 47 F.4th 78, 84
(2d Cir. 2022)), cert. denied, No. 24-1240, 2025 WL 2823807 (Oct. 6, 2025). To determine
whether a case falls within Ex parte Young, “a court need only conduct a straightforward
inquiry into whether the complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Id. (quoting W. Mohegan Tribe &
Nation v. Orange Cnty., 395 F.3d 18, 21 (2d Cir. 2004)).
The “Board of Regents” is an “agenc[y] of the State of New York,” and thus
“entitled to immunity under the Eleventh Amendment.” Mamot, 367 F. App’x at 192–93
(affirming dismissal of claims against Board of Regents). Congress has abrogated
states’ Eleventh Amendment immunity for Title VI claims. Alexander v. Sandoval, 532
U.S. 275, 280 (2001); 42 U.S.C.A. § 2000d-7. However, as for the remainder of NAGA’s
claims, they identify no source of waiver by New York, and the Court is not aware of
one. See Doe v. State Univ. of New York Purchase Coll., 617 F. Supp. 3d 195, 211 (S.D.N.Y.
2022) (“New York has not prospectively waived its immunity for claims brought
pursuant to the New York State Constitution.”). And it is well-established that
Congress did not abrogate states’ sovereign immunity for § 1983 claims, Mallet v. New
York State Dep’t of Corr. & Cmty. Supervision, 126 F.4th 125, 138 (2d Cir. 2025), and New
York “has not consented to § 1983 suits in federal court,” Mamot, 367 F. App’x at 192.
Accordingly, except for NAGA’s Title VI claim, the Board of Regents is entitled to
Eleventh Amendment immunity and the claims against it are dismissed for lack of
subject matter jurisdiction.
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Still, there remain all of the parties’ claims against the Board of Regents members
themselves. Massapequa and NAGA almost entirely allege ongoing violations of
federal law by individual Board of Regents members in their official capacity, and they
seek prospective injunctive relief. Accordingly, the Ex parte Young exception applies to
their federal claims against these Board of Regents members.
However, NAGA also brings claims under the New York State Constitution for
free speech and equal protection violations. These claims do not fit within the Ex parte
Young exception, and thus the Court must dismiss them. Pennhurst, 465 U.S. at 106
(“We conclude that Young . . . [is] inapplicable in a suit against state officials on the basis
of state law.”); e.g., Harvey v. Corneal, No. 24-CV-7380, 2025 WL 2345879, at *3 (S.D.N.Y.
Aug. 13, 2025) (“New York has waived its sovereign immunity from suit on state law
claims, but only insofar as suit is brought in the New York Court of Claims. . . . State
law claims brought against public employees in their official capacities in federal court
are therefore routinely dismissed for lack of subject matter jurisdiction.” (citations
omitted)) (collecting cases).
In summary, Massapequa’s claims proceed past the Eleventh Amendment
sovereign immunity bar, since they seek prospective relief against state officials, in their
official capacity, for violations of federal law. And NAGA may proceed with its federal
causes of actions against those same individual Board of Regents members. These
claims fall within Ex parte Young.
NAGA cannot, however, proceed with its claims against the New York State
Board of Regents itself, save its Title VI claim, which is subject to a congressional waiver
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of immunity. Nor can NAGA bring its state law claims, since they do not meet any of
the exceptions enumerated above.
IV. 	Article III Standing
“[A] district court must generally resolve material factual disputes and establish
that it has federal constitutional jurisdiction, including a determination that the plaintiff
has Article III standing, before deciding a case on the merits.” All. For Env’t Renewal,
Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 85 (2d Cir. 2006). “Article III limits federal
judicial power to ‘Cases’ and ‘Controversies,’ and standing to sue ‘limits the category of
litigants empowered to maintain a lawsuit in federal court to seek redress for a legal
wrong.’” Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 92 (2d Cir. 2019) (citation
omitted) (quoting Spokeo, Inc., v. Robins, 578 U.S. 330, 338 (2016)). “The ‘case or
controversy’ requirement is ‘fundamental to the judiciary’s proper role in our system of
government.’” Murthy v. Missouri, 603 U.S. 43, 56 (2024) (quoting Raines v. Byrd, 521
U.S. 811, 818 (1997)). “[I]f a dispute is not a proper case or controversy, the courts have
no business deciding it, or expounding the law in the course of doing so.” Id. at 57
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)).
A case or controversy “exists only when at least one plaintiff” has standing to
sue. Id. The standing requirement “help[s] ensure that the plaintiff has such a personal
stake in the outcome of the controversy as to warrant her invocation of federal-court
jurisdiction.” Id. (quotations omitted). To establish standing, a plaintiff “must show
that she has suffered, or will suffer, an injury that is ‘concrete, particularized, and actual
or imminent; fairly traceable to the challenged action; and redressable by a favorable
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ruling.’” Id. (quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)). Because
“standing is not dispensed in gross,” a plaintiff “must demonstrate standing for each
claim that they press” against each defendant “and for each form of relief that they
seek.” Id. at 61 (quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021)).
“[W]hile a party may seek redress for injuries done to that party, it may not for
‘injuries done to others.’” Rynasko v. New York Univ., 63 F.4th 186, 193 (2d Cir. 2023)
(quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166 (1972)). So the “‘irreducible’
requirements of Article III” standing—injury, traceability, and redressability—“apply
to . . . organizational plaintiffs alike.” Doe v. Hochul, 139 F.4th 165, 182 (2d Cir. 2025).
“[W]here the plaintiff is an organization, the standing requirements of Article III
can be satisfied in two ways. Either the organization can claim that it suffered an injury
in its own right or, alternatively, it can assert standing solely as the representative of its
members.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600
U.S. 181, 199 (2023) (quotations omitted). If it chooses the latter route, the association
must “demonstrate that ‘(a) its members would otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.’” Italian-Am. Def. League v. City of New Haven, No.
24-2877, 2025 WL 2731290, at *1 (2d Cir. Sep. 25, 2025) (quoting Hunt v. Wash. State Apple
Advert. Comm’n, 432 U.S. 333, 343 (1977)).
The NAGA Plaintiffs seek a preliminary injunction. In such a situation, “[t]he
evidentiary burden for establishing Article III standing . . . is at least as onerous as the
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burden for establishing standing to secure a summary judgment.” Do No Harm v. Pfizer
Inc., 126 F.4th 109, 113–14 (2d Cir. 2025). But Defendants seek dismissal, while the
Massapequa Plaintiffs’ motion to amend is judged like a motion to dismiss, and the
“[t]he burden for establishing standing at the dismissal stage is lower.” Id. at 114.
Under that standard, “general factual allegations of injury resulting from the
defendant’s conduct may suffice,” and a court is to “presume that general allegations
embrace those specific facts that are necessary to support the claim.” Id. at 119
(quotations omitted). The Court has reached its standing conclusions based on the
NAGA Plaintiffs’ failure to meet the lower, motion to dismiss standard.16
In Section A below, the Court first analyzes the First Amendment claims and
concludes Massapequa and its Board (including Caramore in her official capacity), as
well as all of the NAGA Plaintiffs, do not have standing to bring their First Amendment
claims. But Caramore’s overbreadth, free speech, and political speech causes of action
brought in her individual capacity may go forward. Then, in Sections B and C, the
Court finds that the NAGA Plaintiffs do not have standing to bring their equal
protection and due process challenges. The Court then holds that none of the parties
have standing to bring their dormant and Indian Commerce Clause claims in Sections D
and E. The parties’ Title VI claims and Massapequa’s Title VII claim, and the lack of
16 Where a plaintiff fails establish standing for a preliminary injunction, the Court
must determine whether the failure “arises from the insufficiency of the plaintiff’s
evidence of standing,” which “may be remediable,” in which case dismissal of the entire
action “would be premature.” Do No Harm, 126 F.4th at 121. The appropriate
“consequence of that failure is that the plaintiff isn’t entitled to a preliminary injunction.”
Id. at 122. These nuances are not triggered here, where the Court evaluates standing
against the dismissal standard, not a heightened preliminary injunction standard.
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standing to bring them, is addressed in Section F. In Section G, the Court finds that
parties in both cases lack standing to bring a Section 1981 claim. Massapequa and the
Board’s Bill of Attainder claim is dismissed on the merits in Section V.
A. 	First Amendment Claims
For pre-enforcement First Amendment challenges, “somewhat relaxed
standing . . . rules” apply. Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 689 (2d Cir.
2013). A plaintiff must demonstrate only (1) “an intention to engage in a course of
conduct arguably affected with a constitutional interest;” (2) “that the intended conduct
is ‘arguably prescribed by’ the challenged regulation”; and (3) “that ‘there exists a
credible threat of prosecution thereunder’ that is ‘sufficiently imminent.’” Upsolve,
Inc. v. James, 155 F.4th 133, 139 (2d Cir. 2025) (quoting Susan B. Anthony List v. Dreihaus,
573 U.S. 149, 159, 162 (2014)).
1. 	Massapequa and the Board
Neither Massapequa or the Board has suffered, or is likely to suffer, a cognizable
First Amendment injury as a result of Part 123. Analyzing this question is not helped
by either side’s briefing, and requires some parsing and interpretation of the PAC.
Massapequa and the Board first try to invoke the overbreadth exception to standing,
claiming that they can raise a First Amendment overbreadth challenge to the broad,
impermissible sweep of Part 123. (Massapequa PAC ¶ 120 (“Under the third-party
standing exception, this case is not just about Plaintiff Caramore’s right to engage in
First Amendment expressive activity, or her fellow Board members’ ability to do so.”)).
But they misapprehend overbreadth doctrine. The third-party bar to standing is an
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exception to the prudential—not Article III—limits on standing, which is in addition to
the requirements of injury, causation, and redressability.
“Overbreadth challenges are a form of First Amendment challenge and an
exception to the general rule against third-party standing. A party alleging overbreadth
claims that although a statute did not violate his or her First Amendment rights, it
would violate the First Amendment rights of hypothetical third parties if applied to
them.” Farrell v. Burke, 449 F.3d 470, 498 (2d Cir. 2006) (citation omitted); see also United
States v. Smith, 945 F.3d 729, 736 (2d Cir. 2019) (“Under the overbreadth doctrine, ‘the
prudential limitations against third party standing are relaxed, and the litigant may
assert the rights of individuals whose interests might be affected by the statute but who
are not before the court.’” (citation omitted)). But raising an overbreadth challenge does
not absolve the plaintiff from meeting the constitutional “injury-in-fact” requirement.
See id. (“Accordingly, [the plaintiff] may challenge the [federal laws] as
unconstitutionally overbroad only if he can establish Article III standing.” (emphasis
added)); Farrell, 449 F.3d at 499 (“We allow a party to bring an overbreadth challenge
where that party satisfies the [Article III] requirement of injury-in-fact, and [where] it
can be expected satisfactorily to frame the issues in the case.” (quotations omitted));
Hedges v. Obama, 724 F.3d 170, 204 (2d Cir. 2013) (“Plaintiffs repeatedly refer to the First
Amendment overbreadth doctrine as if it were relevant to whether they have
established Article III standing. It is not. . . . [T]he overbreadth doctrine speaks to
whose interests a plaintiff suffering Article III injury may represent. It does not provide
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a reason to find such injury where none is present or imminently threatened in the first
instance.”).
The injury need not be even a free speech injury—any legally cognizable injury
will suffice. See United States v. Sineneng-Smith, 590 U.S. 371, 389–90 (2020) (Thomas, J.,
concurring) (“Overbreadth doctrine . . . allows a litigant without a legal injury to assert
the First Amendment rights of hypothetical third parties, so long as he has personally
suffered a real-world injury.” (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973))); see
also Warth v. Seldin, 422 U.S. 490, 501 (1975) (“[T]he plaintiff still must allege a distinct
and palpable injury to himself . . . to seek relief on the basis of the legal rights and
interest of others[.]”). “An injury in fact can be a physical injury, a monetary injury, an
injury to one’s property, or an injury to one’s constitutional rights, to take just a few
common examples.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 381 (2024).
Here is where Massapequa and the Board’s presentation falls short. Outside of
using a series of First Amendment and constitutional buzzwords, they do little to
identify any injury suffered as a result of Part 123. Their briefing identifies five alleged
“direct injuries,” from Part 123: the regulation “compels Plaintiffs to restrict protected
speech, imposes compliance costs, chills the democratic process, creates risk of legal
exposure for constitutional violations, and erodes longstanding cultural identity tied to
the ‘Chiefs’ name.” (Massapequa Pls.’ Reply at 7). No further elaboration is provided.
Indeed, the overbreadth claim in the PAC contains no reference to these injuries. (See
Massapequa PAC ¶¶ 116–26). In any event, they are not cognizable.
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The claim that Massapequa and the Board are being forced to chill the speech of
others,17 presumably referring to Part 123.5, which requires a district to stop employees
and officers from using Indigenous mascots on school property or any school function,
has a number of problems.
First, as an arm of the government, and a sub-entity of a state, it may not have
any First Amendment rights whatsoever, meaning it cannot use a First Amendment
injury to bring an overbreadth claim. This is not a capacity-to-sue problem, but a
question of whether the government itself has First Amendment rights and could ever
suffer a First Amendment injury. See Dismissal Order, 2025 WL 929710, at *9 n.15
(collecting cases); e.g., McCutcheon v. Fed. Election Comm’n, 572 U.S. 185, 206 (2014) (“The
First Amendment does not protect the government[.]”); see also Creek v. Vill. of
Westhaven, 80 F.3d 186, 192 (7th Cir. 1996) (“Only a few cases address the question
whether municipalities or other state subdivisions or agencies have any First
Amendment rights. All but one, and that not a case against a municipality, answer
‘no.’”) (collecting cases); but see David Fagundes, State Actors as First Amendment
Speakers, 100 Nw. U. L. Rev. 1637, 1639 (2006) (“Courts have varied in their receptivity
to the notion that the First Amendment may extend to government speech. The
17 The Massapequa Plaintiffs once use the label “prior restraint,” as Caramore
does several times in her individual free speech claim. (Massapequa PAC ¶¶ 121, 131–
32, 137). But they do not explain how Part 123 is one of “the two traditional types of
prior restraint: (1) preventing the printed publication of disfavored information, and
(2) a facially-neutral law that sets up an administrative apparatus with the power and
discretion to weed out disfavored expression before it occurs.” Citizens United v.
Schneiderman, 882 F.3d 374, 386–87 (2d Cir. 2018) (citations omitted) (“The unequalled
power of the presumption against prior restraint is best reserved for situations that
closely resemble these two clear cases.”).
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majority of courts have reflexively rejected the notion, relying on the assumption that
the First Amendment can only restrict, not protect, state actors. A minority of courts, in
contrast, have arrived at different conclusions.”); e.g., Cnty. of Suffolk v. Long Island
Lighting Co., 710 F. Supp. 1387, 1390 (E.D.N.Y. 1989) (Weinstein, J.) (“A municipal
corporation, like any corporation is protected under the First Amendment in the same
manner as an individual.”), aff’d, 907 F.2d 1295 (2d Cir. 1990); Mosdos Chofetz Chaim,
Inc. v. Vill. of Wesley Hills, 701 F. Supp. 2d 568, 599 (S.D.N.Y. 2010) (collecting both cases
denying that government actors have First Amendment rights and those finding they
have such protections, including the right to petition). If municipalities lack First
Amendment rights, neither Massapequa nor the Board can avoid being drafted by the
State to chill or silence the speech of others. That is not to say that the employees,
officials, or students lack First Amendment rights—they plainly do have them and are
free to challenge Part 123 on their own. But neither Massapequa nor the Board can
claim any cognizable First Amendment injury, nor can they claim the potential future
injury of their employees.
Second, even assuming that either Massapequa or the Board could invoke the
First Amendment’s protection, any injury from coercion is not actual or imminent, but
instead conjectural or hypothetical. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
To be sure, “[a]n allegation of future injury may suffice if the threatened injury is
‘certainly impending’ or there is a ‘substantial risk’ that the harm will occur.” Susan B.
Anthony List, 573 U.S. at 158 (quoting Clapper, 568 U.S. at 414 & n.5). Here Massapequa
and the Board allege (in briefing only) that they will be forced to prevent employees or
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officers from using the Chiefs mascot at school events or on school property.
(Massapequa Pls.’ Reply at 6–8). While this might appear to be a First Amendment
coercion claim targeting the conduit of the employee’s speech, see Nat’l Rifle Ass’n of
Am. v. Vullo, 144 F.4th 376, 385 (2d Cir. 2025) [hereinafter NRA v. Vullo], the allegations
in the PAC are too probabilistic and vague to infer that there is substantial risk the
injury will occur.18
The Massapequa PAC refers to no employees or officials (other than Caramore)
who use the Chiefs mascot or intend to do so on school property or at a school event. In
other words, there is no employee or official who Massapequa or the Board would
likely have to silence under Part 123.5. Presumably, such a person exists or could have
been identified. But the PAC only includes references to the use of the Chiefs mascot by
the town of Massapequa, (Massapequa PAC ¶¶ 45–51), and by community members at
school functions or around the town, (id. at ¶¶ 52–53). Those references do not help,
since neither the Town nor the private citizens (or even students) are barred or
regulated in any way by Part 123. They are free to use the Chiefs mascot and wear
Chiefs apparel as they currently do, and neither Massapequa nor the Board is required
to prevent them from doing so under the regulation. While employees or officials need
18 Crafting a coercion claim out of the facts in this case requires some contortion
of the doctrine. Coercion claims under the First Amendment exist when the
government targets (1) the speaker itself; (2) a “conduit for the speaker (i.e., a person
who disseminates the speech for the speaker)”; or (3) “a third-party associate of the
speaker (i.e., a person with whom the speaker interacts or does business).” NRA v.
Vullo, 144 F.4th at 385. When a school employee wears or uses the Chiefs mascot, it
appears the employee—and not Massapequa or the Board—is who is targeted. The
only way for Massapequa to bring a coercion claim is to infer that it serves as the
conduit for the employee’s speech, because the speech occurs on school grounds.
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not be identified by name, Massapequa and the Board must identify some person—or
allege that there are employees or officials who use the Chiefs mascot on campus—if
they want to use “coercion” as injury. See Fac., Alumni, & Students Opposed to Racial
Preferences v. New York Univ., 11 F.4th 68, 76 (2d Cir. 2021) [hereinafter FASORP] (“By
way of identifying members who have suffered the requisite harm, FASORP only
asserts that its membership includes ‘faculty members or legal scholars who have
submitted articles to the Law Review in the past, and who intend to continue
submitting their scholarship to the Law Review in the future’ and ‘individuals who
have sought and applied for entry-level or lateral teaching positions at the Law School
and intend to do so again the future, or remain potential candidates . . . .’ FASORP
argues that ‘[i]t’s hard to get more specific than that.’ We do not agree. . . . For
example: When did FASORP’s members submit articles or apply for jobs at NYU?
Have those members drafted articles they intend to submit? If so, when do they plan to
submit?” (citations omitted)). But they have not. (As for Caramore’s use of the Chiefs,
neither Massapequa nor the Board allege that they intend to prevent her from using it.
And it would be implausible if they did, since she is their co-plaintiff.) Simply put,
“allegations of possible future injury are not sufficient,” Lacewell v. Office of Comptroller of
Currency, 999 F.3d 130, 141 (2d Cir. 2021) (quoting Clapper, 568 U.S. at 409), because they
run contrary to the rule that injury not be speculative. FDA, 602 U.S. at 381; see, e.g.,
FASORP, 11 F.4th at 76 (“FASORP effectively asks us to accept a ‘self-description of the
activities of its members’ and to conclude that ‘there is a statistical probability that some
of those members are threatened with concrete injury.’ Such allegations are plainly
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insufficient to show that FASORP’s members have suffered the requisite harm here.”);
Liu v. Democratic Nat’l Comm., No. 21-CV-0767, 2021 WL 5351886, at *3 (S.D.N.Y. Nov.
15, 2021) (“Liu has not alleged an injury that is ‘actual or imminent’ as opposed to being
‘conjectural or hypothetical’. . . . Whether Liu will suffer the injuries he fears thus will
depend on the entirely speculative question regarding the rules that the DNC adopts[.]”
(citation omitted)), aff’d, No. 21-3021, 2022 WL 4372587 (2d Cir. Sep. 22, 2022).
The other injuries identified by Massapequa and the Board fare no better. As for
the claimed “compliance costs,” (Massapequa PAC ¶ 114), while it is true that
“[m]onetary costs ‘are of course an injury,’” Diamond Alt. Energy, LLC v. Env’t Prot.
Agency, 145 S. Ct. 2121, 2133 (2025) (quoting United States v. Texas, 599 U.S. 670, 676
(2023)), such costs must have either been incurred already or be inevitable. Lacewell, 999
F.3d at 147. Otherwise, potential future costs are simply conjecture and “too
speculative . . . to support standing.” Id. at 143 n.14 (“DFS still has yet to incur these
costs, . . . thus demonstrating that these costs—like the other costs DFS alleges it will
incur—are too speculative at this stage to support standing.”). Other than the passing
reference to “costs” of compliance, the Massapequa PAC makes no mention of what
financial or other costs are imposed to comply with Part 123. While in their briefs,
Massapequa and the Board note that they would incur expenses to find a new mascot
for the school, a school is not required to have a mascot, and there is no allegation that if
forced to comply with Part 123, Massapequa would seek out a replacement. It would
have been easy enough to identify the mascot’s presence on school property, from
which one could infer some “cost” for removal, but the PAC only references the use of
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the mascot by community members and throughout the town. In any event, had they
done so, the cost injury would still be speculative because Part 123 does not
automatically require “removal” of the Chiefs mascot. For instance, it exempts school
buildings named after an Indigenous tribe and permits displays for purposes of
“classroom instruction.” See 8 NYCRR §§ 123.1, 123.2. The costs here are therefore
neither inevitable nor have they been incurred, and thus they constitute only a vague
and speculative injury. See, e.g., Lacewell, 999 F.3d at 143 n.14; Maione v. McDonald, No.
18-CV-7452, 2025 WL 2676591, at *7 (S.D.N.Y. Sep. 18, 2025) (“[T]hese conclusory
allegations, which lack any details about their timing or circumstances, do not plausibly
establish that there will be any future cost-sharing burdens.”); Obstfeld v. Unifin, Inc.,
774 F. Supp. 3d 497, 503 (E.D.N.Y. 2025) (“[Plaintiff’s] purported harms of incurring
expenses to mitigate the risk of debt collection and emotional damage will not support
constitutional standing.”).
Massapequa and the Board then claim that they are injured because Part 123
“creates risk of legal exposure for constitutional violations,” (Massapequa Pls.’ Reply at
7; see also Massapequa PAC ¶ 114), a contention it never explains, but which
presumably refers to its exposure for statutory violations: its claims under Title VI and
VII. But as noted below, infra p. 79, they have not established injury there either.
Finally, Massapequa and the Board refer to the injury from chilling of the
“democratic process” and erosion of “longstanding cultural identity tied to the ‘Chiefs’
name.” (Massapequa Pls.’ Reply at 7). These alleged injuries, without more
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explanation or detail, are so hollow as to border on the meaningless, and not concrete
enough to constitute Article III injury.
The lower standard imposed for injury in pre-enforcement challenges, supra
p. 39, does not save these injury theories. Even under a relaxed standard, the injury
must be “sufficiently imminent.” Susan B. Anthony, 573 U.S. at 159 (“[A] plaintiff
satisfies the injury-in-fact requirement where he alleges ‘an intention to engage in a
course of conduct arguably affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution thereunder.’” (citation
omitted)). And though “imminence is concededly a somewhat elastic concept,” it at
minimum requires that any injury not be “speculative.” Clapper, 568 U.S. at 409 (citation
omitted). And as the foregoing discussion illustrates, the identified injuries—which
have no detail supporting them in the PAC—are little more than speculation or
conjecture.
Because neither Massapequa nor the Board has established any Article III injury,
it cannot bring an overbreadth claim. E.g., Hedges, 724 F.3d at 204–05; Smith, 945 F.3d at
736–38; Brokamp v. James, 66 F.4th 374, 389–90 (2d Cir. 2023), cert. denied, 144 S. Ct. 1095
(2024); Liu v. New York City Campaign Fin. Bd., No. 14-CV-1687, 2016 WL 5719773, at *5
(S.D.N.Y. Sep. 29, 2016).
Their other First Amendment claim, alleging a free speech restriction on political
speech, has a separate standing problem. Massapequa here sues on the basis of injury
to its employees—their inability to use the Chiefs mascot when running for School
Board—not any restriction on Massapequa’s own political speech. (Massapequa Pls.’
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Reply at 5 (“The new Third Cause of Action alleges that Part 123 imposes
unconstitutional restrictions on the speech of incumbent board members and district
employees[.]”); Massapequa PAC ¶ 172). But that is a classic attempt to sue for the
injuries of others, for which no exception is identified by Massapequa. “[A] plaintiff
will have standing only to ‘assert his or her own legal rights and interests’ and may not
‘rest a claim to relief on the legal rights or interests’ of others.” Doe, 139 F.4th at 177
(quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)); see, e.g., LaPierre ex rel. Town of
Yorktown v. DiBartolo, No. 12-CV-1996, 2013 WL 656313, at *4 (S.D.N.Y. Feb. 21, 2013)
(dismissing plaintiffs’ attempt to claim injuries on behalf of their town); Worrell v.
Cortines, No. 90-CV-3142, 1995 WL 1079717, at *7 (E.D.N.Y. Mar. 26, 1995) (dismissing
public school teacher’s claims based on injury to her students).
The Board also claims that Part 123 infringes on its own rights by precluding its
current, incumbent members from engaging in political expression, in the form of the
Chiefs mascot, in connection with Board elections or school events. (Massapequa Pls.’
Reply at 5-6; Massapequa PAC ¶ 171). The problem is the same as Massapequa’s. The
Board qua the Board is not engaging in political speech, at least any identified in the
Massapequa PAC. The Board itself is not running for reelection or engaging in its own
election-related political speech at school events. Individual Board members seeking
reelection, like Caramore, are engaged in that speech. And just like Massapequa cannot
sue to vindicate the First Amendment rights of its employees, the Board cannot do the
same for its members.
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2. 	NAGA and Finkenbinder
NAGA and Finkenbinder also challenge Part 123 on First Amendment free
speech grounds. (NAGA Compl. ¶¶ 139–50). They assert three forms of alleged injury.
First, they allege NAGA and Finkenbinder have standing because Part 123 nullifies the
Agreement, to which NAGA and NAGA’s Board (of which Finkenbinder is a member)
are signatories. (NAGA Pls.’ Opp’n at 4–5). Second, Finkenbinder asserts he has
standing as a New York State taxpayer and as an individual because Part 123 bans his
Native expression (such as his cultural regalia) on school property. (Id. at 7). And third,
Finkenbinder’s injury (as a member of NAGA and its Board) gives NAGA associational
standing, as do the injuries of NAGA’s other Native members “who are impacted by
the Native Name Ban.” (Id. at 6–7). None of these theories of injury satisfy Article III.
a. 	The Agreement is Not a Contract
NAGA tries to manufacture standing under the guise of the Agreement, a
contract that ostensibly gives Massapequa the right to use the Chiefs mascot. But the
Agreement is nothing more than a fiction. NAGA has no right to the Chiefs mascot. It
does not own it or have a trademark on it. NAGA has no greater right to license the
Chiefs mascot than a random member of the public. NAGA uses the Agreement to give
Massapequa something NAGA does not possess, own, or have any right to control. In
legal terms, it gives no consideration to Massapequa, which means the Agreement is an
empty piece of paper. Its obligations and benefits are illusory and nonexistent; the
Agreement exists as a contract in name only, a clever yet facile and “thinly veiled
attempt to circumvent the limits on . . . standing.” Murthy, 603 U.S. at 76. And this
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problem encumbers every one of NAGA’s claims, including its First Amendment
allegations.
NAGA argues it has authorized Massapequa to use “Indigenous NIL [Name,
Image, and Likeness] for all school-related purposes,” including “athletic uses,” in
exchange for Massapequa’s commitment “that it will continue to use the ‘Chiefs’ name
and logo as the District’s official name and logo for all school related purposes.”19 (Id.).
Should Massapequa discontinue its Native American educational programming or fail
to use the Chiefs mascot, NAGA’s authorization permitting Massapequa to use
“Indigenous NIL rights will automatically be withdrawn.” (Id.). But if that happens,
NAGA “will have no cause of action of any kind” to compel Massapequa to comply
with the terms of the Agreement. (Id.). And if Part 123 invalidates the Agreement,
either party may cancel the contract. (NAGA Agreement ¶ 5).
19 While the Agreement refers to NIL generally, neither NAGA nor Massapequa
have identified any NIL other than the Chiefs mascot that NAGA would purportedly
permit Massapequa to use. The Agreement itself, and the parties’ briefing, make plain
that the only NIL the Agreement refers to is the Chiefs mascot. (See NAGA Agreement
¶ 4 (“This Agreement constitutes the full agreement between the parties with regards to
the terms and conditions pursuant to which NAGA . . . permit[s], consent[s] to,
support[s], and authorize[s] the District in its continued use of its current Indigenous
name, mascot, and logo. No other promises or agreements have been made.”); e.g.,
NAGA Pls.’ Opp’n at 5 (“The Agreement . . . required the District’s continued use of
Native name, imagery and likeness (‘NIL’) in connection with its educational and
athletic programming, e.g. continuing the traditions of ‘the Massapequa Chiefs.’”)).
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This language may sound like a contract, but it is not. “[A] contract is a promise
supported by consideration and, in the case of a bilateral contract such as this,20 the
promise of each party must be based upon valuable consideration.” Curtis Props.
Corp. v. Greif Cos., 212 A.D.2d 259, 264 (1st Dep’t 1995). Each side in a bilateral contract
must provide consideration to the other in return for the promised performance. Id.;
Kowalchuk v. Stroup, 61 A.D.3d 118, 125 (1st Dep’t 2009) (“In fact, the consideration for a
bilateral contract such as this one, in which promises are exchanged, consists of the acts
mutually promised.”); Greater Buffalo Press, Inc. v. Harris Corp., No. 85-CV-1404E, 1988
WL 85943, at *2 (W.D.N.Y. Aug. 15, 1988) (“A bilateral contract, . . . is one where the
promiser requires a promise from the promisee instead of an act; the formation of the
contract being when the mutual promises are exchanged.”). “Consideration is defined
as either a bargained for gain or advantage to the promisee or a bargained for legal
detriment or disadvantage to the promisor.” Greenberg v. Greenberg, 646 F. App’x 31, 32
(2d Cir. 2016). Of course, the Court does “not ask whether the thing which forms the
consideration does in fact benefit the promisee or a third party, or is of any substantial
20 The Second Restatement walks back the terms “unilateral” and “bilateral” as
an unhelpful distinction, Restatement (Second) of Contracts § 1, cmt. f (1981); generally
speaking, “[a] unilateral contract results from an exchange of a promise for an act, while
a bilateral contract results from an exchange of promises. Because a unilateral contract
is one in which no promisor receives a promise as consideration for their promise, only
one party is bound.” 1 Williston on Contracts § 1:18 (4th ed.). The Agreement here is
bilateral, since both sides make promises to each other: Massapequa promises to keep
using the Chiefs and to maintain its educational programming, and NAGA promises to
authorize Massapequa’s use of the Chiefs. In contrast, the prototypical examples of a
unilateral contract are an option contract or a right of first refusal—where one party is
bound but the other is not and there is “no obligation to perform.” Berardi v. Berardi,
No. 22-CV-0159, 2023 WL 4544625, at *4 (N.D.N.Y. June 12, 2023), aff’d, No. 23-1011,
2024 WL 1269902 (2d Cir. Mar. 26, 2024).
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value to anyone.” Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 464-65 (1982); see also
Hamer v. Sidway, 124 N.Y. 538, 546 (1891) (“Consideration means not so much that one
party is profiting as that the other abandons some legal right in the present or limits his
legal freedom of action in the future as an inducement for the promise of the first.”).
Under the Agreement, on the one hand, Massapequa is receiving the supposed
right to use the Chiefs mascot, in return for agreeing to provide the Native American
education outlined in Exhibit A. On the flip side, NAGA is receiving the benefit of that
education, in return providing Massapequa rights to use the mascot.
But NAGA provides no consideration to Massapequa under the Agreement.
Why? Whether measured in money, legal forbearance, or any other detriment, NAGA
gives up nothing when providing “rights” to use the Chiefs mascot. NAGA does not
own, license, or have any relationship to the current Chiefs mascot. NAGA contends it
need not have a trademark for the mascot to contract for it. (NAGA Pls.’ Opp’n at 10–
11). True, but it must have some relationship to it, otherwise its “permission” is a
gratuitous gesture without any legal effect. There is no detriment to NAGA from its
promise to give the Chiefs mascot to Massapequa—it imposes no burden on NAGA,
however measured, because the Chiefs mascot is not theirs to authorize, license, or
convey. To be a contractual promise with consideration, the promise “must be of some
value, or at least not merely empty formal words[.]” Nassau Supply Co. v. Ice Serv. Co.,
252 N.Y. 277, 280 (1929). The Agreement is akin to one where a Hellenic society
dedicated to celebrating ancient Greek and Roman mythology enters into a “contract”
with Nike to permit the company to use its name. Perhaps a nice symbolic moment, but
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not a contract in any jurisdiction. See McCarney v. Scott, 146 F.2d 624, 626 (2d Cir. 1944)
(Hand, J.) (“That promise was without consideration, and created no contract. Indeed,
it may have been no more than a generous gesture.”).
Massapequa’s promises to conduct educational programing and to continue to
use the Chiefs mascot are also fictional. In an ordinary contract, a party’s agreement to
take some action—even if not measured in monetary cost—can be consideration, if the
party is forgoing some legal right or freedom to act. So theoretically, Massapequa’s
giving up its right to discontinue its existing educational programming, and its
agreement to use the Chiefs mascot, could count as consideration. And furthermore,
Massapequa’s promise to use the Chiefs mascot likely imposes a different burden—it
would be done in contravention of Part 123, which subjects it to loss of funding.
But these are not real promises. Why not? Massapequa’s promises to use the
Chiefs mascot and provide Native American-related education are entirely optional.
Either can be discontinued at Massapequa’s discretion, at any time, of its own accord,
without penalty. Should that occur, NAGA’s authorization to use the Chiefs mascot is
automatically withdrawn. (See NAGA Agreement ¶ 1 (“In the event that the District
discontinues all the educational programming . . . or fails to continue to use the ‘Chiefs’
name . . . NAGA’s . . . authorization for the District’s continued use of its Indigenous
NIL rights will automatically be withdrawn[.]”)). Because of the automatic withdrawal,
the moment Massapequa stops using the Chiefs mascot, it no longer has any rights from
NAGA to use the Chiefs mascot. Therefore, it could not be in breach of any obligation
to use the mascot. Furthermore, should Massapequa cease its educational
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programming, NAGA cannot compel Massapequa to change course. (Id. (“NAGA will
have no cause of action of any kind and nature to compel or require the District to
provide any kind of educational programming or instruction.”)). Neither party can sue
the other for breach should Part 123 invalidate the Agreement, because the breaching
party can just cancel the contract. (NAGA Agreement ¶ 5). In other words, should
Massapequa cease its own performance, by stopping use of the Chiefs mascot, or
discontinuing its educational programming, NAGA could not claim breach.
Such arrangements are nothing but illusory promises, i.e., promises that cannot
support a contract. Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1120 (10th Cir. 2010)
(noting an illusory promise exists “where the promisor retains an unlimited right to
decide later the nature or extent of his or her performance. This unlimited choice in
effect destroys the promise and makes it illusory.” (quoting 1 Samuel Williston &
Richard A. Lord, A Treatise on the Law of Contracts § 4:27, at 804–05 (4th ed. 2007)));
Restatement (Second) of Contracts § 77a (1981) (“Words of promise which by their
terms make performance entirely optional with the ‘promisor’ do not constitute a
promise.”).21
“It is crystal clear that, where there is no consideration flowing from one party to
a contract . . . there is no contract.” Mfrs. Tr. Co. v. Kennedy, 291 F.2d 460, 469 (2d Cir.
21 “[A]n interpretation that renders a contract illusory and therefore
unenforceable is disfavored and enforcement of a bargain is preferred, particularly
where . . . the parties have expressed their intent to be contractually bound in a
writing.” WCA Holdings III, LLC v. Panasonic Avionics Corp., 704 F. Supp. 3d 473, 495
(S.D.N.Y. 2023). The interpretation here, though, is not one possible understanding
among several caused by ambiguous terms. It flows from the only plain reading of the
Agreement.
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1961). The Agreement is not a contract and is unenforceable, and thus, its invalidation
cannot be the basis of an injury that gives rise to any claim. See Associated Builders &
Contractors W. Penn. v. Cmty. Coll. of Allegheny Cnty., 81 F.4th 279, 288 (3d Cir. 2023)
(“While Plaintiffs are right that the size of the injury is irrelevant, whatever mere ‘trifle’
is alleged, must still be legally cognizable.” (citation omitted)); cf. California v. Texas, 593
U.S. 659, 671 (2021) (“Here, there is no action—actual or threatened—whatsoever.
There is only the statute’s textually unenforceable language.”).
A separate problem with NAGA’s standing is that it misinterprets Part 123. Part
123.4(b) provides a safe harbor to existing contracts entered into between tribal nations
and public schools that permit the use of an Indigenous mascot. If such a contract
exists, Part 123.2—which prohibits the use of a mascot—does not apply to the public
school. The school may continue to use the mascot, but cannot accept nor offer
anything of value or consideration for doing so. 8 NYCCR § 123.4.
From this safe harbor, NAGA assumes that Part 123 invalidates or nullifies all
other contracts a public school executes after the effective date, whether with a tribal
nation or anyone who licenses an Indigenous mascot. (NAGA Pls.’ Opp’n at 4–5). But
on its face Part 123 does no such thing. There is no provision of Part 123 that effectuates
an invalidation of contracts that fall outside the safe harbor. It may be that a public
school could not in good faith enter into such an agreement, knowing that the school
was subject to Part 123, but that does not mean that the contract is per se invalid by the
force of the regulation.
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This misapprehension means NAGA lacks standing. NAGA is not a directly
regulated party or entity under Part 123, and the Agreement is not automatically
invalidated or nullified by the regulation. The Board of Regents has not taken any
action against and has not asserted any power to regulate associations like NAGA,
Indigenous tribes, or their members, and NAGA does not explain how the Board of
Regents could take steps to invalidate the Agreement. To be sure, Massapequa may not
be able to comply with the Agreement because of its obligations under Part 123. But in
that case, NAGA’s injury from Massapequa’s inability to comply is not traceable to
Defendants’ conduct, but to Massapequa’s, which can opt to (or not) comply with the
Agreement (or Part 123). Cf. Fiore v. Univ. of Tampa, 568 F. Supp. 3d 350, 367 (S.D.N.Y.
2021) (denying parents standing to sue university where any economic injury was
traceable to the parent-child arrangement for payment of tuition, not to the parent-
university relationship).
Consequently, any injury claimed from invalidation of the Agreement is
nonexistent, and that impedes most of NAGA’s claims, except the equal protection and
First Amendment claims, for which they raise other theories of injury. The Court
addresses these in turn.
b. 	NAGA’s Assertion of its Members’ First Amendment Injury
NAGA tries to bring a First Amendment claim under Section 1983 on behalf of its
members, including Finkenbinder. (NAGA Compl. ¶¶ 139–50). But it cannot, even if
its members or Finkenbinder are injured. “[I]t is the law of this Circuit that an
organization does not have standing to assert the rights of its members in a case
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brought under 42 U.S.C. § 1983.” A.H. ex rel. E.H. v. New York State Dep’t of Health, 147
F.4th 270, 277 n.2 (2d Cir. 2025) (quoting Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)).
So the only First Amendment claim that NAGA could bring must arise out of its
own injury. See Conn. Citizens Def. League, Inc. v. Lamont, 6 F.4th 439, 447 (2d Cir. 2021)
(“An organization may nonetheless bring ‘a § 1983 suit on its own behalf so long as it
can independently satisfy the requirements of Article III standing.’” (citation omitted)).
c. 	NAGA and Finkenbinder’s Other First Amendment Injury
Part 123 governs the mascots a school district may use. NAGA and
Finkenbinder’s other alleged First Amendment injury is indirect; they claim they are
harmed because others cannot use the Chiefs mascot, and they are deprived as a result.
Like the theory of standing rejected by the Supreme Court in Murthy—where the
plaintiffs, five social-media users, claimed that they had a “right to listen” injury from
the censorship of various online platforms—NAGA’s injury claim is “startlingly broad.”
603 U.S. at 75. It would give anyone interested in the Chiefs mascot, wherever they may
be located or whoever they may be, “the right to sue over someone else’s censorship.” Id.
Whatever the right to associate and receive information, ideas, and messaging conveyed
by the use of the Chiefs mascot by Massapequa, the Board, or their employees, NAGA
and Finkenbinder only suffer a legal injury if they have “a concrete, specific connection
to the speaker.” Id. (citing Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)).
The Agreement does not establish that connection. For one thing, it is not an
actual contract. See supra pp. 50–56. For another, there is a redressability problem if
NAGA uses the Agreement to establish standing. If NAGA and Finkenbinder did have
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standing to challenge Part 123.4(b), which they allege invalidates the Agreement and
frustrates their ability to advance the organization’s core mission, (NAGA Pls.’ Opp’n at
6), they would not have free rein to challenge and invalidate the rest of Part 123, as they
wish to do. And as a result, invalidating the part of the law that impacts the Agreement
would leave in place the other provisions that bar use of the Chiefs mascot, which
NAGA has no standing to challenge. “The fact that a plaintiff has suffered an injury
that is traceable to one kind of conduct does not grant that plaintiff standing to
challenge other, even related, conduct,” since “standing is not dispensed in
gross.” Johnson v. U.S. Off. of Pers. Mgmt., 783 F.3d 655, 661 (7th Cir. 2015) (quotations
omitted); e.g., Davis v. Fed. Election Comm’n, 554 U.S. 724, 733–34 (2008) (“The fact that
Davis has standing to challenge § 319(b) does not necessarily mean that he also has
standing to challenge the scheme of contribution limitations that applies when § 319(a)
comes into play.”). In standing parlance, NAGA and Finkenbinder’s First Amendment
injury—the inability to enjoy the use of the Chiefs mascot—is not redressable by its
challenge to Part 123.4(b); their inability to appreciate and associate with the Chiefs
mascot is affected by other portions of the law. (See, e.g., Aff. of David Finkenbinder
dated Aug. 7, 2025 (“Finkenbinder Aff.”), attached to NAGA Pls.’ Opp’n as Ex. A, Dkt.
25-1 ¶ 7; Aff. of Frank Black Cloud dated Aug. 7, 2025 (“Black Cloud Aff.”), attached to
NAGA Pls.’ Opp’n as Ex. B, Dkt. 25-2 ¶¶ 9–11; Aff. of Eunice Davidson dated Aug. 7,
2025 (“Davidson Aff.”), attached to NAGA Pls.’ Opp’n as Ex. C, Dkt. 25-3 ¶¶ 4–6, 13).
A judicial decision in its favor invalidating the contract-related provision would leave
the rest of Part 123’s restrictions on Massapequa’s use of the mascot in place.
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The NAGA Plaintiffs try to cure this problem by relying on Finkenbinder’s
injury, which is broader and does not rely on the Agreement. (NAGA Pls.’ Opp’n at 7–
8). Finkenbinder claims Part 123 violates his free speech rights because it “excludes him
(and other sharing his heritage) from having their history and ancestry recognized,”
(NAGA Compl. ¶ 19), and “excludes [him] . . . from school-sponsored events by
forbidding the display of Native names, logos, or imagery, except as approved
classroom discussion topics,” (NAGA Pls.’ Opp’n at 7). But Finkenbinder is not directly
regulated by Part 123. Should he wish to use, wear, or display the Chiefs mascot at
Massapequa sports games or school functions, Part 123 has nothing to say about that.
The regulation does not govern or impact the behavior of private citizens who are not
affiliated with Massapequa (by virtue of being employed by or a student in the District).
Finkenbinder’s indirect First Amendment injury is even more attenuated than NAGA’s
injury. He claims a First Amendment right to associate with the Chiefs mascot at school
functions, (id.), but he has no relationship to Massapequa—he is not employed by the
District, a parent of a child in a District school, or a member of its Board. So, he lacks
the requisite injury for standing, because he lacks the necessary connection to the
speaker. Murthy, 603 U.S. at 75.
Finkenbinder then tries a different tact, claiming that he has general taxpayer
standing. (NAGA Pls.’ Opp’n at 7; NAGA Compl. ¶ 19; see also Finkenbinder Aff.
¶¶ 6–8). With few exceptions never raised by NAGA or relevant here, status as a state
taxpayer does not confer standing. See Hein v. Freedom From Religion Found., Inc., 551
U.S. 587, 599 (2007) (rejecting federal taxpayer standing because the interest is “too
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generalized and attenuated to support Article III standing”); DaimlerChrysler, 547 U.S. at
345 (“The foregoing rationale for rejecting federal taxpayer standing applies with
undiminished force to state taxpayers.”); Bd. of Educ. of Mt. Sinai Union Free Sch. Dist. v.
New York State Tchrs. Ret. Sys., 60 F.3d 106, 110 (2d Cir. 1995) (“State taxpayers, like
federal taxpayers, do not have standing to challenge the actions of state government
simply because they pay taxes to the state.”). Though Finkenbinder cites a variety of
cases for the proposition that New York state law permits taxpayer standing, federal
courts are of limited jurisdiction, and state standing doctrine cannot overcome those
federal limitations. Hollingsworth, 570 U.S. at 714–15. Since Finkenbinder does not have
standing, even if NAGA could bring § 1983 claims on behalf of its members, it could not
do so here. Citizens United to Protect Our Neighborhoods v. Vill. of Chestnut Ridge, New
York, 98 F.4th 386, 395 (2d Cir. 2024) (“[S]ince we have already concluded that none of
the Individual Plaintiffs has standing under any of those theories, CUPON’s derivative
claims of associational standing must also fail.”).
In summary, the Agreement does not give rise to a cognizable injury, because it
is an illusory contract. Even if it were not, the Agreement could only help NAGA
challenge one section of Part 123, which would not redress its claimed injury to its
benefitting from others using the Chiefs mascot. As for a theory of injury based on a
right to associate with the Chiefs mascot, without any connection to Massapequa,
NAGA and Finkenbinder have no standing. And Finkenbinder’s taxpayer status does
not give him standing, either.
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3. 	Caramore
Caramore has three free speech claims in the Massapequa action brought in her
individual capacity: the overbreadth and political speech causes of action, as well as
another claim that Part 123 violates the First Amendment by unlawfully compelling or
restricting her speech. (Massapequa PAC ¶ 128). The Court already granted Caramore
leave to amend First Amendment claims in her individual capacity. Dismissal Order,
2025 WL 929710 at *35. Defendants do not challenge her standing to bring any of these
claims.
Caramore asserts she is an official of the District whose conduct and expression
is directly regulated by Part 123. E.g., 8 NYCRR § 123.5 (prohibiting “school officers
and employees when located on school property or at a school function from utilizing
or promoting any Indigenous name, logo, or mascot”). She continues to wear Chiefs
apparel, in part, “to protest Part 123” and “support the District’s ongoing fight to
maintain the Chiefs name and logo.” (Massapequa PAC ¶¶ 153–54). As a current
Board member, she is subject to removal from her position for noncompliance with Part
123. See Part 123 FAQ at 9; N.Y. Educ. Law § 306.
Caramore brings her political speech claim as an incumbent candidate for School
Board—again, a position directly regulated by Part 123. She “intends to seek re-election
during the next eligible election cycle,” but she is not a member of a tribal nation, and
thus not exempt from Part 123’s prohibition on using or promoting any Indigenous
mascot on school property or at a school function. (Massapequa PAC ¶ 178). She
“plans to engage in expressive and speech conduct by wearing apparel bearing the
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‘Chiefs’ name and logo—representing the school’s historical identity—and by
distributing campaign materials featuring the same,” but Part 123 forbids her from
doing so. (Id. ¶¶ 179–80). Caramore, then, unlike NAGA or Finkenbinder (or an
unnamed, unidentified member of the public or Board), has shown her “personal stake”
in this dispute—and that she is not a “mere bystander.” Diamond Alt. Energy, 145 S. Ct.
at 2133.
Thus, the Court grants the motion to amend to permit Caramore to bring the
overbreadth, free speech, and political speech causes of action in her individual
capacity.22
The First Amendment claims of Massapequa and the Board (including any
brought by Caramore in an official capacity), as well as all of the NAGA Plaintiffs, are
dismissed.
22 Both sides suggest that once these First Amendment issues reach the merits,
the answers will be simple and straightforward. But they are knotty and difficult.
Compare Latino Officers Ass’n N.Y., Inc. v. City of New York, 196 F.3d 458, 463 (2d Cir.
1999) (“[T]he government ‘may impose restraints on the job-related speech of public
employees that would be plainly unconstitutional if applied to the public at large.’”
(quoting United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 465 (1995))), with id. at
468 (“[N]ot all speech by a government agent is ‘government speech’ . . . even when a
government agent represents he is speaking as a representative of the government
body, that agent may have independent rights under the First Amendment.”). This
decision does not say anything about Caramore’s claims on the merits. “This case
concerns only standing, not the merits. [She] may or may not prevail on the merits[.]”
Diamond Alt. Energy, 145 S. Ct. at 2141.
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B. 	NAGA’s Equal Protection Claim
Only the NAGA Plaintiffs challenge Part 123 on equal protection grounds,
alleging a violation of the Fourteenth Amendment.23 (NAGA Compl. ¶¶ 125–38). Part
123 bans the use of names, symbols, or images only of Indigenous cultures—but no
other group—when used to represent public schools. See 8 NYCRR § 123.1. The law
singles out and bans Indigenous mascots, but not those of other races or ancestries.24 It
also permits a New York State recognized tribal nation to use certain mascots for its
sports teams composed of tribal members, including those who attend a tribal school.
Id. § 123.4(a). But non-tribal nation schools cannot use the identical mascot. Part 123
extends the benefit of using the mascot to schools based on their status as a tribal
school. And finally, the regulation establishes a safe harbor for contracts concerning
Indigenous mascots, between a recognized tribal nation and a public school, before a
23 NAGA is foreclosed from bringing this claim, pled under Section 1983, on
behalf of its members, but it may bring the claim on behalf of the organization itself.
A.H. ex rel. E.H., 147 F.4th at 278; Conn. Citizens Def. League, 6 F.4th at 447; supra pp. 57–
58.
24 Part 123.1 may be a classification based on ancestry. See Rice v. Cayetano, 528
U.S. 495, 514 (2000). That being said, because “[a]ncestry can be a proxy for race,” id., it
may well need to satisfy strict scrutiny and raise a “serious” equal protection problem.
Haaland v. Brackeen, 599 U.S. 255, 333 (2023) (Kavanaugh, J, concurring). The other
provisions, however, could be read as classifications based on tribal status, or
membership in a tribe, which has been considered a political, not racial classification.
See, e.g., Rice, 528 U.S. at 519–20. And if they are political, not racial classifications, they
are subject to a rational basis review, though that question is hardly settled. Compare
Haaland, 599 U.S. at 310 (2023) (Gorsuch, J. concurring) (citing Morton v. Mancari, 417
U.S. 535, 553 n.24, (1974)), with Malabed v. N. Slope Borough, 42 F. Supp. 2d 927, 938 (D.
Alaska 1999) (“[C]haracterizing Native American interests as political rather than racial
or ethnic does not automatically result in a lower level of scrutiny being used.”), aff’d,
335 F.3d 864 (9th Cir. 2003).
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certain date—a classification based on the content of the agreement, the contracting
party’s status as a tribal nation, and the date of execution.25 Id. § 123.4(b).
Whether these classifications violate equal protection standards must await a
later day, because NAGA is not injured by any identified violation. “[T]o show Article
III standing for constitutionally-protected equal protection claims, a plaintiff must
allege that (1) there exists a reasonable likelihood that the plaintiff is in the
disadvantaged group, (2) there exists a government-erected barrier, and (3) the barrier
causes members of one group to be treated differently from members of the other
group.” Comer v. Cisneros, 37 F.3d 775, 793 (2d Cir. 1994). “An injured plaintiff has
standing to raise an equal protection claim when the state imposes ‘unequal treatment’
on the basis of a protected characteristic, such as race.” MGM Resorts Int’l Glob. Gaming
Dev., LLC v. Malloy, 861 F.3d 40, 45 (2d Cir. 2017) (quoting Heckler v. Mathews, 465 U.S.
728, 738 (1984)). The discrimination injury could be “emotional or psychic, rather than
monetary.” Id. at 50. However, “in order to adequately plead a harm (whether psychic
or monetary) based on discriminatory treatment under a statute, a plaintiff still must
prove he personally would have been subject to the discriminatory terms of the law.”
Id.
NAGA’s equal protection briefing is less than pellucid. Through the haze of
constitutional case name-dropping emerge two theories of equal protection injury: first,
25 Part 123 also allows employees who are tribal members to use or promote an
Indigenous mascot of their tribal nation, but prohibits other employees of all other
backgrounds from doing so. 8 NYCRR § 123.5. NAGA does not challenge this
provision on equal protection grounds.
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NAGA is deprived of the benefit of Massapequa’s use of the Chiefs mascot, which
NAGA does not own or control; second, the invalidation of the Agreement can be
traced to the provision of Part 123 that gives protection to some, but not all, such
contracts. (NAGA Compl. ¶¶ 129–30, 132; NAGA Pls.’ Opp’n at 14).
With respect to the first theory, NAGA claims it is injured because the use of the
Chiefs mascot by Massapequa is no longer permitted. (NAGA Pls.’ Opp’n at 14–15). To
be sure, “[w]hen a governmental prohibition or restriction imposed on one party causes
specific harm to a third party, harm that a constitutional provision . . . was intended to
prevent, the indirectness of the injury does not necessarily deprive the person harmed
of standing to vindicate his rights. But it may make it substantially more difficult to
meet the minimum requirement of Article III[.]” Warth, 422 U.S. at 505 (citation
omitted); see also FDA, 602 U.S. at 382–83 (“[U]nregulated parties may have more
difficulty establishing causation . . . [T]he ‘line of causation between the illegal conduct
and injury’—the ‘links in the chain of causation’—must not be too speculative or too
attenuated.” (citations omitted)). But in the equal protection context, “even if a
governmental actor is discriminating on the basis of race, the resulting injury accords a
basis for standing only to those persons who are personally denied equal treatment by
the challenged discriminatory conduct.” United States v. Hays, 515 U.S. 737, 743–44
(1995) (quotation omitted); see also Freedom from Religion Found., Inc. v. Lew, 773 F.3d 815,
822 (7th Cir. 2014) (“[T]he mere fact that discrimination is occurring is not enough to
establish standing, absent being ‘personally denied equal treatment.’” (quoting Allen v.
Wright, 468 U.S. 737, 755 (1984))). Whatever salutary and positive effects NAGA claims
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to obtain from Massapequa’s use of the Chiefs mascot, the deprivation of those benefits
is too remote an injury to be cognizable, especially since they do not own any rights to
the mascot. 26 NAGA is not deprived of any benefit—other than the Agreement,
discussed below—by the force of Part 123; it may still use the Chiefs mascot as much or
as little as it would like, even at Massapequa school events or functions. Massapequa
teachers, employees, and Board members are deprived of the benefit of using the Chiefs
mascot; NAGA is not.27 Therefore NAGA lacks any direct equal protection injury. E.g.,
Haaland, 599 U.S at 296 (“Because Texas is not injured by the placement preferences . . .
Texas therefore does not have standing to bring either its equal protection or its
nondelegation claims.”); Sloan v. Michel, No. 15-CV-6963, 2016 WL 1312769, at *7
(S.D.N.Y. Apr. 4, 2016) (“As for the equal protection claim, the Complaint does not
allege that Plaintiff is in a disadvantaged group. The Complaint generally alleges that
independent and minority party voters are disadvantaged, but does not allege that
26 And it is hardly obvious that a deprivation of a school’s ability to use its
mascot of choice (Indigenous or otherwise) could be a deprivation of a legally-protected
interest. See, e.g., Marez v. Redhorse, No. 21-CV-2941, Dkt. No. 52 at 14–16 (D. Colo. May
5, 2022); see also Mancari, 417 U.S. at 554–55 (collecting cases that specifically “upheld
legislation that singles out Indians for particular and special treatment”).
27 Even framed as a stigma or reverse-stigma claim, NAGA’s psychic injury is not
an equal protection injury, since it is not deprived of the benefit of the use of the Chiefs
mascot in the first instance. Allen, 468 U.S. at 755 (“Neither do they have standing to
litigate their claims based on the stigmatizing injury often caused by racial
discrimination. There can be no doubt that this sort of noneconomic injury is one of the
most serious consequences of discriminatory government action and is sufficient in
some circumstances to support standing. Our cases make clear, however, that such
injury accords a basis for standing only to those persons who are personally denied
equal treatment by the challenged discriminatory conduct.” (quotation omitted)),
abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118 (2014).
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Plaintiff belongs to any of these groups or that he is a voter.”), aff’d sub nom. Sloan v.
Schulkin, 689 F. App’x 101 (2d Cir. 2017). Finkenbinder also does not allege any injury
different than that claimed by NAGA—he has no equal protection injury either.
That leaves us with the Agreement and the contract injury. Contracts with tribes
for Indigenous mascots are entitled to the safe harbor, but contracts with anyone else
(for the same mascot) receive no protection from Part 123.4(b). The invalidation of the
Agreement (or the ineligibility of the safe harbor) might be an injury, if the Agreement
was, in fact, a contract. But it is not. Supra pp. 50–56. An illusory contract gives rise to
an illusory injury, which is not concrete enough to proceed with an equal protection
claim.28 See Doe, 139 F.4th at 182 (denying standing to “concerned bystanders” who
circumvent Article III by “exploit[ing] next friend standing to challenge state or national
laws they disagree with, even though they lack a personal stake in the dispute”).
Without an enforceable contract, NAGA lacks standing to bring this equal protection
challenge. And Finkenbinder has no relationship to the contract—and so his contract-
related equal protection injury is nonexistent, too.
C. 	NAGA’s Due Process Claim
NAGA and Finkenbinder also assert due process violations. (NAGA Compl.
¶¶ 151–57). Though hardly clear, the claim has several strands: that Part 123 infringes
28 NAGA contends that the Agreement, executed on May 15, 2025, was valid
until it was nullified by Part 123, which “did not go into effect until June 30, 2025.”
(NAGA Pls.’ Opp’n at 19 n.9 (citing NAGA Compl. ¶ 52)). But NAGA misapprehends
the regulation, which became effective on May 3, 2023, and the safe-harbor provision
applies to agreements entered into prior to that that date. See Part 123 FAQ at 4; 8
NYCRR § 123.4(b).
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substantive due process rights of school districts, and by extension, individuals, because
it is so vague as to deprive them of fair notice and impose arbitrary and unequal
enforcement or application,29 (id. ¶¶ 153–54); and it violates procedural due process by
delegating “broad interpretive and enforcement authority to local school boards
without providing clear, objective, or uniform standards.”30 (Id. ¶ 155).
“A plaintiff who challenges a statute must demonstrate a realistic danger of
sustaining a direct injury as a result of the statute’s operation or enforcement.”
Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). And “[i]n a
procedural due process challenge, the question before the court is whether the process
affording the plaintiff an opportunity to participate in governmental decision-making
29 NAGA fails to explain how it distinguishes its procedural due process claim
from its substantive one. “[T]he geography of due process is hilly,” but for procedural
due process the core is as follows: “before a significant deprivation of liberty or
property takes place at the state’s hands, the affected individual must be forewarned
and afforded an opportunity to be heard at a meaningful time and in a meaningful
manner.” Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990) (quotation omitted). A
substantive due process “claim rests not on perceived procedural deficiencies but on the
idea that the government’s conduct, regardless of procedural swaddling, was in itself
impermissible.” Id. A substantive due process violation exists when some
“constitutional line has been crossed,” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
1973), regardless of the manner in which it was done. Whatever the appropriate label
for the claims, the NAGA Plaintiffs have no injury sufficient to assert them.
30 In one sense, the due process claim is, at its heart, a refashioning of their First
Amendment injury: the alleged vague and arbitrary enforcement of Part 123 deprives
schools and employees from using the Chiefs mascot. But that theory runs headfirst
into the defective “right to listen” injury theory, supra p. 58; and in any event, such a
claim is barred by prudential limits on third-party standing. See Ctr. for Reprod. L. &
Pol’y v. Bush, 304 F.3d 183, 196 (2d Cir. 2002) (“As plaintiffs do not assert a harm to their
own interest in receiving due process of law, this is precisely the sort of claim that the
prudential standing doctrine is designed to foreclose. Plaintiffs cannot make their First
Amendment claims actionable merely by attaching them to a third party’s due process
interests.”).
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before being deprived of his liberty or property was adequate.” Brody v. Vill. of Port
Chester, 345 F.3d 103, 112 (2d Cir. 2003).
Here, NAGA has suffered no deprivation, and is not threatened with any
potential deprivation of liberty or property due to the enforcement of Part 123. The
entirety of its claim is premised on the harm Part 123 inflicts on Massapequa and the
Board to comply with and implement a vague mandate. These injuries do not run to
NAGA, an organization not governed by Part 123. Cf. Ctr. for Reprod. L. & Pol’y v. Bush,
304 F.3d 183, 196 (2d Cir. 2002) (“Plaintiffs’ due process claim is based on their
allegation that the challenged restrictions fail to give clear notice of what political
speech, public education, and law reform activities they prohibit and that they
encourage arbitrary and discriminatory enforcement . . . It is not the plaintiffs,
however, who are allegedly left uncertain of their rights by unconstitutionally vague
language in a government provision; it is the foreign NGOs who are allegedly left in
this position.”). NAGA suffers no direct injury-in-fact from another’s due process
violation, and it therefore has no standing for this claim. See Rynasko, 63 F.4th at 195
(“[A]s a non-party to the contract between Emily and NYU, Rynasko lacks legally
enforceable expectations about Emily’s NYU educational experience. Consequently,
she suffered no cognizable injury in fact when NYU suspended in-person classes,
activities, and services in response to the COVID-19 pandemic.”). The same is true for
Finkenbinder, and this claim is dismissed for lack of standing.
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D. 	Dormant Commerce Clause
“The Commerce Clause provides that ‘Congress shall have Power . . . [t]o
regulate Commerce with foreign Nations, and among the several States.’” Selevan v.
N.Y. Thruway Auth., 584 F.3d 82, 90 (2d Cir. 2009) (quoting U.S. Const. art. I, § 8, cl. 3).
The dormant, or negative, implication of the Interstate Commerce Clause flows from
this grant of Congressional authority, which “limits the power of local governments to
enact laws affecting interstate commerce.” Town of Southold v. Town of E. Hampton, 477
F.3d 38, 47 (2d Cir. 2007). “[S]tate laws offend the Commerce Clause when they seek to
build up . . . domestic commerce through burdens upon the industry and business of
other States[.]” Nat’l Pork Producers Council v. Ross, 598 U.S. 356, 369 (2023) (quotations
omitted). The clause, therefore, “prohibits state taxation or regulation that
discriminates against or unduly burdens interstate commerce and thereby impedes free
private trade in the national marketplace.” Selevan, 584 F.3d at 90 (quoting Gen. Motors
Corp. v. Tracy, 519 U.S. 278, 287 (1997)). “The term discrimination in this context ‘means
differential treatment of in-state and out-of-state economic interests that benefits the
former and burdens the latter.’” Town of Southold, 477 F.3d at 47 (quotation omitted).
“A law may discriminate against interstate commerce on its face, harbor a
discriminatory purpose, or discriminate in its effect.” Variscite NY Four, LLC v. New
York State Cannabis Control Bd., 152 F.4th 47, 63 (2d Cir. 2025) (quotation omitted).
1. 	Massapequa and the Board
Massapequa and the Board contend that Part 123.4(b), by exempting schools that
have a written agreement with a recognized tribe within New York, violates the
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dormant Commerce Clause. (Massapequa PAC ¶ 251). Because tribes outside of New
York are not permitted to contract, they say Part 123 discriminates against out-of-state
tribes. (Id. ¶ 254).
The potential problems of this claim as a commerce clause theory—including
whether Part 123 can ever be read or understood to be a law enacted to advance local
protectionism—affect the threshold injury inquiry. “A plaintiff has standing to raise a
dormant Commerce Clause claim when it has sustained an injury resulting from a
burden on interstate commerce.” MGM Resorts, 861 F.3d at 45 (quotation omitted); see
also Coal. for Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41, 58 (2d Cir. 2018)
(noting that to have a dormant Commerce Clause injury, plaintiff must show that it
suffers effects of discrimination against out-of-state interests). And that injury must be
economic or commercial. See Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 267 (1984);
Selevan, 584 F.3d at 96 (“[A] state policy that is challenged under the dormant
Commerce Clause must be judged by its overall economic impact on interstate
commerce[.]”).
Massapequa and the Board’s claimed injuries are a “loss of an interstate NIL
contract, damage to out-of-state tribal relationships, and reputational harm,” because of
Part 123. (Massapequa Pls.’ Reply at 15; see also Massapequa PAC ¶ 256). 	None of
these suffice.
Massapequa and the Board never explain how a public school district and school
board—neither of which is a commercial entity—suffer an economic or commercial
injury here. (Reputational injury, by its name, is not economic.) There are numerous
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problems with trying to infer that the invalidation of the Agreement creates economic
injury. As an illusory arrangement whose invalidation cannot injure NAGA, supra
pp. 50–57, the counterparties to the deal cannot suffer an injury. Furthermore, the entire
Agreement is devoid of any commercial or economic considerations, or at least any that
are articulated. No money or similar consideration is exchanged by the parties to the
Agreement. Perhaps Massapequa intends to exploit the Chiefs mascot, but it never says
so in the PAC or its papers, meaning that this is a hypothetical or speculative economic
injury.
As for “out-of-state tribal relationships,” Massapequa and the Board do not
identify any (NAGA is not a tribe). If they intend to enter into future relationships with
non-New York tribes that are impeded by Part 123, the injury from the loss of such
contracts is too hypothetical to create standing. See MGM, 861 F.3d at 47 (“MGM has
pleaded only that it is ‘interested’ in exploring development opportunities . . . . It has
not alleged any concrete plans to enter into a development agreement[.]”).
The PAC also claims NAGA is injured as an out-of-state entity disadvantaged by
Part 123. (Massapequa PAC ¶¶ 248, 251–53). But Massapequa and the Board cannot
claim NAGA’s injuries as their own to try to get standing. See, e.g., L.A.M. Recovery,
Inc. v. Dep’t of Consumer Affs., 377 F. Supp. 2d 429, 438 (S.D.N.Y. 2005) (finding no
standing where “the contention that the application of the ordinance to out-of-state tow
operators runs afoul of the dormant Commerce Clause is an assertion by LAM, a New
York City entity, of the alleged rights of out-of-staters”), aff’d, 184 F. App’x 85 (2d Cir.
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2006). Without the required standing, Massapequa and the Board cannot assert this
claim.
2. 	NAGA Plaintiffs
For all their discussion of a “competitive market,” (NAGA Pls.’ Opp’n at 23–24),
the NAGA Plaintiffs fail to allege any sort of commercial or economic injury to them,
separate from the invalidation of the Agreement. Even setting aside the validity
problems, supra pp. 50–56, the Agreement does not identify any economic or
commercial exchange. At most, the Agreement memorializes an associational
relationship between Massapequa and NAGA, where Massapequa’s public schools
educate their students about Native American history and culture, which is already
being done. There is no plausible economic or commercial activity identified by the
NAGA Plaintiffs, and the invalidation of the Agreement does not amount to a dormant
Commerce Clause injury that gives rise to Article III standing.
E. 	Indian Commerce Clause
The Commerce Clause also contains the Indian Commerce Clause: “Congress
shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3. Despite the
common source, it is “well established that the Interstate Commerce and Indian
Commerce Clauses have very different applications.” Cotton Petroleum Corp. v. New
Mexico, 490 U.S. 163, 192 (1989). “[W]hile the Interstate Commerce Clause is concerned
with maintaining free trade among the States even in the absence of implementing
federal legislation, the central function of the Indian Commerce Clause is to provide
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Congress with plenary power to legislate in the field of Indian affairs.” Id. “The
extensive case law that has developed under the Interstate Commerce Clause,
moreover, is premised on a structural understanding of the unique role of the States in
our constitutional system that is not readily imported to cases involving the Indian
Commerce Clause.” Id.
“This congressional authority and the ‘semi-independent position’ of Indian
tribes have given rise to two independent but related barriers to the assertion of state
regulatory authority over tribal reservations and members. First, the exercise of such
authority may be pre-empted by federal law. Second, it may unlawfully infringe on the
right of reservation Indians to make their own laws and be ruled by them.” White
Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980) (quotations omitted). “A court
must know who a regulation targets and where the targeted activity takes place” before
conducting an Indian Commerce Clause analysis. Otoe-Missouria Tribe of Indians v. New
York State Dep’t of Fin. Servs., 769 F.3d 105, 112–13 (2d Cir. 2014). That is because, “the
Indian Commerce Clause’s grant of authority to the federal government, and
preemption of state authority, extends only to activities occurring in ‘Indian country,’
i.e., Indian lands within the territory of the United States.” Grand River Enters. Six
Nations, Ltd. v. Pryor, 425 F.3d 158, 173 (2d Cir. 2005).
The threshold standing problem for all the plaintiffs is that nothing about Part
123 is a state regulation affecting activities on Indian lands. In fact, Part 123 expressly
exempts Indian lands—tribal schools, sports leagues, members, and tribes’ written
agreements—from its reach, see 8 NYCRR §§ 123.4(b) & 123.5, meaning it does not
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interfere with Congressional power under the Indian Commerce Clause. E.g., Grand
River Enters., 425 F.3d at 174; Blunk v. Arizona Dep’t of Transp., 177 F.3d 879, 884 (9th Cir.
1999) (“In sum, the requirements for the Navajo Fee Land to be ‘Indian country’ are not
met in this case. Because the land is not ‘Indian country,’ the ADOT is not preempted
by the federal preemption prong of the Indian preemption doctrine from regulating
Blunk’s erection of billboards on the land.”); cf. Sac & Fox Nation of Missouri v. Pierce, 213
F.3d 566, 573 (10th Cir. 2000) (“Tribes have alleged particularized imminent economic
injury if the State imposes its motor fuel tax on fuel distributed to [stations on tribal
land].”).
1. 	Massapequa and the Board
Massapequa and the Board allege that Part 123 denies “tribal nations the ability
to contract,” “intrudes on tribal affairs and commerce,” and “infringes Congress’s ‘trust
responsibility’ to protect Indigenous peoples.” (Massapequa PAC ¶¶ 271–73).
Whatever validity this argument may or may not have, these plaintiffs are not injured.
Massapequa and the Board do not allege that any activity they conduct is on tribal
lands or affects tribal lands. They, therefore, do not have standing.
2. 	NAGA Plaintiffs
NAGA’s Complaint barely gestures at the fact that it is advancing an Indian
Commerce Clause claim. After declaring in the preliminary statement that NAGA is
bringing a claim under both the dormant and Indian Commerce Clauses, (NAGA
Compl. ¶ 2), the Indian Commerce Clause claim never appears again, save a single
reference alleging that the Indian Commerce Clause “has been interpreted to mean that
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only the Federal government can regulate Indian tribes or their economic activities,” (id.
¶ 159). These passing references do not allege standing sufficient to bring the claim
(one whose contours are barely present).
NAGA’s briefing alleges three ways that Part 123 violates the Indian Commerce
Clause: 1) it “prohibits all post-May 3, 2023 agreements between school districts and
tribal nations,” 2) “it renders unlawful any agreement that involves ‘consideration,’
thereby nullifying basic elements of contract law essential to tribal commerce and
cultural licensing arrangements,” and 3) “it effectively regulates and restricts tribal
commerce and identity—such as NIL—that is deeply intertwined with tribal lands,
sovereignty, and intertribal cooperation across state borders.” (NAGA Pls.’ Opp’n at
29). In sum, NAGA is claiming either that that its ability to contract for its name, image,
and likeness is a right protected by the Indian Commerce Clause that is infringed by
Part 123, or that the rights of tribal nations to contract with public schools is violated by
Part 123. It cannot proceed on either theory—even if these allegations were in its
complaint. These allegations sound in general Interstate Commerce Clause injury, not
under the Indian Commerce Clause, which requires some relationship to activities on
tribal land.
Specifically, with respect to the first theory, based on the right of tribal nations to
contract with school districts, NAGA is not, itself, a tribal nation (or a school district)
conducting activities on tribal lands, and it does not identify any tribal-nation members
conducting such activities that would be impacted by Part 123. Therefore, NAGA lacks
both direct and associational standing to pursue this claim under the Indian Commerce
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Clause. As for NAGA’s other theories about Part 123’s impact on contracts related to
licensing of tribal-affiliated material, or “tribal commerce,” without any nexus to how
these activities take place on Indian lands, there is no Indian Commerce Clause injury.
(And there is the ever-present problem of the illusory contract, see supra pp. 50–56, that
cannot serve as the basis for NAGA’s injury.) Finkenbinder, who also sues
individually, is a tribal member who might possibly articulate some connection
between his activities and tribal lands. But he does not. Thus, both NAGA and
Finkenbinder lack standing for their Indian Commerce Clause claim.31
F. 	Title VI and Title VII Claims
None of the Plaintiffs in the two cases are protected directly by the statutes they
seek to challenge. They are not employees protected by Title VII’s prohibition on
discrimination in employment and they are not recipients of federal educational
funding protected by Title VI (students are). Normally, that would preclude their
ability to bring a claim under either law, unless they seek to invalidate a state law
because it conflicts with the obligation to comply with the dictates of federal law. Such
preemption challenges are enabled by the Supremacy Clause: “Under the Supremacy
Clause of the Constitution, state and local laws that conflict with federal law are
31 “When the party suing is a Native American tribe, actual infringements on the
tribe’s sovereignty constitute a concrete injury sufficient to confer standing . . . based on
the substantive interest which Congress has sought to protect in tribal self-government.
This rule exists because tribes, like states, are afforded ‘special solicitude in a court’s
standing analysis.’” Otoe-Missouria Tribe of Indians v. New York State Dep't of Fin. Servs.,
974 F. Supp. 2d 353, 357–58 (S.D.N.Y. 2013) (quotations omitted), aff’d, 769 F.3d 105 (2d
Cir. 2014). But NAGA is not a tribe.
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without effect.” Figueroa v. Foster, 864 F.3d 222, 227 (2d Cir. 2017) (quoting N.Y. SMSA
Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 103-04 (2d Cir. 2010)).
A party seeking to preempt a state law or obligation must still allege a “sufficient
injury in fact” to confer standing—not anyone can assert that the state law runs contrary
to the federal one. E.g., Tong, 930 F.3d at 73–74 (analyzing Article III standing before
evaluating New Haven’s preemption challenge to Federal Aviation Act); State of
Alaska v. U.S. Dep’t of Transp., 868 F.2d 441, 444 (D.C. Cir. 1989) (“Inasmuch as this
preemptive effect is the injury of which petitioners complain, we are satisfied that the
States meet the standing requirements of Article III.”). Massapequa, the Board, and
NAGA fail to do so for the Title VI claim, and Massapequa and the Board have not
established preemption standing for their Title VII claim.
1. 	Title VI Claims
“Title VI provides that ‘[n]o person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance.’” Tolbert v. Queens Coll., 242 F.3d 58, 69 (2d Cir. 2001) (quoting 42
U.S.C. § 2000d)).
a. 	Massapequa and the Board
Massapequa and the Board assert that Part 123 violates Title VI in three ways:
1) it compels them to discriminate via the elimination of Indigenous mascots; 2) it
coerces discrimination in contracting via the invalidation of the Agreement; and 3) it
“mandates adverse treatment of certain Indigenous school officers and employees by
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barring their use or promotion of culturally affiliated imagery on school property.”
(Massapequa PAC ¶ 189). They claim Title VI preempts Part 123 because it prohibits
race discrimination and Part 123 requires it. (Id. ¶ 212). And the District, forced to
comply with both, cannot do so.
This standing theory fails, because there is no imminent or actual, non-
hypothetical, chance that the federal government will contend that Massapequa or the
Board is violating Title VI, should they comply with Part 123. See Kearns v. Cuomo, 981
F.3d 200, 207 (2d Cir. 2020) (“A plaintiff has standing to make a preenforcement
challenge when . . . prosecution under an allegedly unconstitutional statute is not
imaginary or wholly speculative.” (quotations omitted)). Indeed, quite the opposite.
As these Plaintiffs proclaim over and over again, (Massapequa, Pls.’ Mem. in Supp. of
Mot. to Amend dated May 19, 2025 (“Massapequa Pls.’ Mot. to Amend”), Dkt. No. 66 at
11–12; Massapequa Pls.’ Reply at 3, 17), the federal government has launched an
investigation into Part 123—but that investigation is directed at New York State and the
Board of Regents. And the federal government has found that these parties (i.e., the
Defendants in the case)—not Massapequa or the Board—are violating Title VI, by
implementing Part 123. See Press Release, Secretary McMahon Visits Massapequa High
School, Announces Finding in School Mascot Probe (May 30, 2025) (“U.S. Department
of Education’s Office for Civil Rights (OCR) has concluded its investigation into the
New York Department of Education and the New York State Board of Regents (the
Board). OCR determined that the Board has violated Title VI of the Civil Rights Act
(1964) by banning the use of Native American mascots and logos by school districts in
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the state of New York.”).32 The federal government then proposed an agreement for the
New York Department of Education and Board of Regents to voluntarily resolve the
noncompliance finding—the alternative being referral to the U.S. Department of Justice
for enforcement proceedings and potential loss of federal funding. Id. The enforcement
penalties spelled out in the press release Massapequa and the Board point to clearly run
against the State (the SED and the Board of Regents). Id.
Massapequa and the Board have identified no such risk of enforcement by OCR
or the Department of Justice against them. So, in what would be a curious posture, the
Defendants might have standing to bring a pre-enforcement challenge. But
Massapequa and the Board, having shown no threat of enforcement of Title VI against
them—and indeed, having pointed out the opposite—have no standing to bring a
preemption challenge to Part 123.
b. 	NAGA Plaintiffs
The NAGA Plaintiffs have a different Title VI standing problem. They may bring
this claim against both the Board of Regents and the Regents members in their official
capacities, since neither is protected by sovereign immunity, supra at pp. 34–35, but in
any event, the claim fails for lack of injury. The NAGA Plaintiffs argue that they have
standing because public school districts receive federal funds and Part 123 excludes
Native representation in school programs and activities. (NAGA Pls.’ Opp’n at 12).
NAGA is a bystander: a private actor with an interest in the effects of Part 123 and Title
VI’s potential conflict. NAGA is not a recipient of or applicant for federal funding or
32 The Press Release is available at: https://perma.cc/Y94B-KTH6.
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potentially subject to enforcement of Title VI by the federal government or enforcement
of Part 123 by New York. And although Title VI does contain a private right of action,
Bloomberg v. New York City Dep’t of Educ., 119 F.4th 209, 214 (2d Cir. 2024), NAGA’s lack
of injury precludes it from bringing a preemption challenge under Title VI—even if the
federal government were to conclude that Massapequa violates Title VI by complying
with Part 123.
NAGA might have standing if it had a student (or parent) member that would be
subject to a loss of federal funding because of Massapequa’s compliance with Part 123
(of course, that student is unlikely to face an imminent harm, given the federal
government’s position, supra pp. 80–81). All NAGA says in this regard is that it “brings
this action on behalf of itself and its members, who include Native American students,
parents, educators, and community leaders directly impacted by the enforcement of
Part 123 in the State of New York.” (NAGA Pls.’ Opp’n at 26). Conclusory assertions
that some unidentified members of NAGA, somewhere in the state of New York, have
been “directly impacted” by Part 123 are simply not an injury that is “concrete,
particularized, and actual or imminent.” Murthy, 603 U.S. at 57.
2. 	Massapequa’s Title VII Claim
“Title VII of the Civil Rights Act of 1964 ‘prohibits employment-related
discrimination on the basis of race, color, religion, sex, or national origin and retaliation
against employees who complain about discrimination.’” Tassy v. Buttigieg, 51 F.4th
521, 529 (2d Cir. 2022) (citation omitted).
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Massapequa and the Board claim that Part 123 “directs school districts to
discriminate against certain Indigenous people with respect to the terms, conditions,
and privileges of their employment because of their race and national origin.”
(Massapequa PAC ¶ 215). Specifically, they note that Part 123.5 requires them to
prohibit employees on school property or at school functions from using an Indigenous
mascot, but exempts tribal employees using the identical mascot if it is for their tribe.
(Id. ¶¶ 221–22). And to comply and enforce the provision, it would have to violate Title
VII by singling out employees by Indigenous, or non-Indigenous backgrounds. (Id.
¶¶ 225–26).
This injury—a putative conflict with implementing Part 123.5 and also not
engaging in race-based discrimination under Title VII—is pure conjecture and not
concrete enough to confer standing. “In every case—representative standing or
otherwise—the complaint must clearly allege facts demonstrating that there is a real
party in interest who has suffered (or will suffer) an injury[.]” Doe, 139 F.4th at 181.
(quotations omitted).
Massapequa and the Board admit they know of no potentially impacted
employee and they do not and cannot ascertain the tribal status of their employees.
(Massapequa PAC ¶ 225). Nor do they identify any employee who wears apparel with
an Indigenous mascot or plans to do so. This defeats standing. Cf., e.g., Doe, 139 F.4th at
181 (“Even if FASORP was not required to name names, Article III required it to allege
some details about who the allegedly injured scholars were and how they were at risk of
harm, such as by offering a description of concrete plans to apply for employment or
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submit an article, or by showing that there were members who are able and ready to
submit articles or to seek faculty positions.” (citation modified) (quoting FASORP, 11
F.4th at 76–77, 79)); Lacewell, 999 F.3d at 143.
Nonetheless, Massapequa and the Board cite California Federal Savings & Loan
Association v. Guerra in support of their preemption-based standing. (Massapequa Pls.’
Reply at 9). It provides them no succor. In Guerra, the Supreme Court reached the
merits of a Title VII preemption claim brought by an employer, rejecting the argument
that California law required employers to violate Title VII by providing benefits to
pregnant workers. 479 U.S. 272, 291 (1987). But there, the employer initiated the
litigation in federal court after 1) an employee unsuccessfully attempted to return to
work following state-mandated pregnancy leave; 2) the employee filed an
administrative complaint against the employer; and 3) the responsible state agency
charged the employer with violating state law. Id. at 278. The employer sued in federal
court before it was scheduled to appear before the state agency, claiming it would be
subject to lawsuits from male employees asserting that Title VII barred reverse sex
discrimination if the company complied with the state law. Id. Massapequa and the
Board are a far cry from the employer in Guerra, which was in the direct throes of an
employee’s Title VII complaint. To be sure, they need not wait to be sued by an
employee under Title VII, but they must show, by pleading specific facts, that there is
even a single employee they would potentially have to ask to stop using an Indigenous
mascot. They have not.
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Massapequa and the Board then claim they face “legal liability from Title VII
claims from misidentified and mistargeted employees.” (Massapequa Pls.’ Reply at 11–
12 (quoting Massapequa PAC ¶ 228)). But that simply builds speculation upon
speculation. See Lacewell, 999 F.3d at 143; Clapper, 568 U.S. at 410 (“[R]espondents’
theory of standing, which relies on a highly attenuated chain of possibilities, does not
satisfy the requirement that threatened injury must be certainly impending.”). It
assumes misidentification followed by legal lawsuits, which is all conjectural. And
even if it comes to fruition, it does not appear that prohibiting employees from wearing
Chiefs apparel is an adverse action that would entitle an employee to sue Massapequa
under Title VII. Sanders v. New York City Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir.
2004) (“To be materially adverse, a change in working conditions must be more
disruptive than a mere inconvenience or an alteration of job responsibilities. Examples
of such a change include termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices . . . unique to a
particular situation.” (quotations omitted)); Perard v. Jamaica Hosp. Med. Ctr., No. 18-CV-
6661, 2020 WL 5633153, at *12 (E.D.N.Y. Sep. 20, 2020) (“Courts in the Second Circuit
have found that being asked to comply with an employer’s dress code is generally not
considered an adverse employment action.”).
Finally, they claim they have standing to assert a Title VII claim because they will
“incur substantial expenses” to replace their mascot. (Massapequa PAC ¶ 228). That,
too, is not an injury. See supra pp. 46–47.
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G. 	Claims Under Sections 1981 and 1983
Section 1981 “outlaws discrimination with respect to the enjoyment of benefits,
privileges, terms, and conditions of a contractual relationship.” Patterson v. Cnty. of
Oneida, N.Y., 375 F.3d 206, 224 (2d Cir. 2004). “Any claim brought under § 1981,
therefore, must initially identify an impaired ‘contractual relationship,’ § 1981(b), under
which the plaintiff has rights.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476,
(2006). It follows that, where there are no rights under a contract, there can be no § 1981
claim—there is no § 1981 injury where the plaintiff lacks a contract claim in the first
place. See id. (“Section 1981 offers relief when racial discrimination blocks the creation
of a contractual relationship, as well as when racial discrimination impairs an existing
contractual relationship, so long as the plaintiff has or would have rights under the
existing or proposed contractual relationship.”).
Massapequa and the Board contend that Part 123 is unconstitutional under
§ 1981 because it “den[ies] Indigenous peoples the ‘full and equal benefit of all laws’
and the right to contract.”33 (Massapequa PAC ¶ 233). NAGA and Finkenbinder bring
a § 1981 challenge, too, but much like their Indian Commerce Clause claim, it appears to
be included as an afterthought. It is mentioned only twice, and both times cursorily in
33 “[T]he Supreme Court [has] held that ‘the express cause of action for damages
created by § 1983 constitutes the exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units.’” Duplan v. City of New York, 888 F.3d
612, 619 (2d Cir. 2018) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)).
Though not pled as such in the PAC, Massapequa and the Board do “confirm that their
§ 1981 claim is [pled] through 42 U.S.C. § 1983,” (Massapequa Pls.’ Reply at 12), and the
Court construes it as such. E.g., Oparaji v. Teachers’ Ret. Sys. of City of New York, No. 23-
CV-5212, 2025 WL 1413912, at *5 (S.D.N.Y. May 15, 2025). The NAGA Plaintiffs do
plead their Section 1981 claim under Section 1983. (NAGA Compl. ¶ 127).
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passing, in the Complaint. (NAGA Compl. ¶ 2; id. at 35). Count I, which also sets out
NAGA and Finkenbinder’s federal and state equal protection challenges, makes no
further reference to § 1981. It does not even use the word “contract.” Having not
asserted any theory of § 1981 injury, this claim is dismissed.
To the extent Massapequa or the Board bring this claim, as the Court detailed
above, the Agreement is a fiction, and there is no contract that could give rise to a § 1981
injury.
V. 	Bill of Attainder
Massapequa and the Board allege that Part 123 is an “unconstitutional bill of
attainder because it legislatively determines guilt and inflicts punishment . . . without
any judicial trial or individualized adjudication.” (Massapequa PAC ¶ 278); see U.S.
Const. art. I § 10. “In its contemporary usage, the Bill of Attainder Clause prohibits any
‘law that legislatively determines guilt and inflicts punishment upon an identifiable
individual without provision of the protections of a judicial trial.’” ACORN v. United
States, 618 F.3d 125, 135–36 (2d Cir. 2010) (quoting Selective Serv. Sys. v. Minn. Pub.
Interest Research Grp., 468 U.S. 841, 846–47 (1984)).
Massapequa and the Board are state entities that do not enjoy the protections
from Bills of Attainder. As the Supreme Court has explained: “[C]ourts have
consistently regarded the Bill of Attainder Clause of Article I and the principle of the
separation of powers only as protections for individual persons and private groups,
those who are peculiarly vulnerable to non-judicial determinations of guilt.” South
Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). Though the provision protects
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corporations, Consol. Edison Co. of New York v. Pataki, 292 F.3d 338, 347 (2d Cir. 2002),
neither Massapequa nor the Board cite a single case extending that principle to
municipal entities like school districts or their constituent boards. See also Nuclear
Energy Inst., Inc. v. Env’t Prot. Agency, 373 F.3d 1251, 1308 (D.C. Cir. 2004) (“The Clause
cannot be invoked on behalf of a State.”).
And the claim fails on the merits. “[A] law may be an attainder when it ‘singl[es]
out . . . an individual for legislatively prescribed punishment . . . whether the individual
is called by name or described in terms of conduct which, because it is past conduct,
operates only as a designation of particular persons.’” Reynolds v. Quiros, 990 F.3d 286,
296 (2d Cir. 2021) (quoting Communist Party of the United States v. Subversive Activities
Control Bd., 367 U.S. 1, 86 (1961)). Part 123 does not specify any affected persons or
corporations by name, identity, or in any particular way. When a law or regulation, as
is the case with Part 123, “attaches not to specified organizations but to described
activities in which an organization may or may not engage,” it is not a bill of attainder.
Communist Party, 367 U.S. at 86.
* 	* 	*
On October 15, 2025, the District, the Board, and Caramore, both in her official
and individual capacities, joined with several additional parties to file a new third
lawsuit virtually identical to the two cases already pending, represented by the same
counsel. See Compl., Massapequa Union Free Sch. Dist. v. Hochul, No. 25-CV-5791
(E.D.N.Y Dec. 15, 2025) (“Massapequa II”), Dkt. No. 1 at 1. The case named some of the
same Defendants that are or have been named in Massapequa’s present suit—
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Chancellor Young of the New York State Board of Regents and the Board of Regents
itself—as well as new defendants Governor Hochul, the New York State Department of
Education, and Education Commissioner Betty Rosa. Id. The facts and claims asserted,
including claims of First Amendment overbreadth and political speech, Title VI, Title
VII, Section 1981, and dormant and Indian Commerce Clause violations, are nearly
identical to those in Massapequa and NAGA’s existing lawsuits. The plaintiffs in this
new case marked their action as related to Massapequa’s, but not NAGA’s, pending
case. Civil Cover Sheet, Massapequa II, No. 25-CV-5791 (E.D.N.Y Oct. 15, 2025), Dkt. No.
1-18 at 1.
The filing raised serious concerns for the Court of possible gamesmanship to
evade the procedural rules for amendment and of violations of the rule against
duplicative litigation. See O.S.C., Massapequa II, No. 25-CV-5791 (E.D.N.Y Oct. 17, 2025),
Dkt. No. 6 at 2–3. The plaintiffs elected to voluntarily withdraw and dismiss the
Massapequa II action following the Court’s order directing them to explain the propriety
of the new case. Notice of Voluntary Dismissal, Massapequa II, No. 25-CV-5791 (E.D.N.Y
Oct. 20, 2025), Dkt. No. 9. Since there appeared to be some confusion over general rules
regarding amendment and duplicative filings, the Court briefly reiterates and clarifies
some of those principles here.
The rule against duplicative litigation prevents a litigant from “claim splitting”
their lawsuit into separate cases or simply filing, over and over again, the same
complaint, in whole or in part, in new cases to duplicate the chances of success. See
Sacerdote v. Cammack Larhette Advisors, LLC, 939 F.3d 498, 504 (2d Cir. 2019) (“[A]
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plaintiff has ‘no right to maintain two actions on the same subject in the same court,
against the same defendant at the same time.’” (quoting Curtis v. Citibank, N.A., 226 F.3d
133, 138 (2d Cir. 2000))). This rule applies when there are the “same parties, or, at least,
such as represent the same interests; there must be the same rights asserted and the
same relief prayed for; the relief must be founded upon the same facts, and the title, or
essential basis, of the relief sought must be the same.” Id. (quoting The Haytian Republic,
154 U.S. 118, 124 (1894)). “Like claim preclusion, the rule against duplicative litigation
applies not only where there is identity, but also where there is privity, between the
parties in the first- and second-filed actions.” Wang v. Ren, No. 20-4216, 2023 WL
1977233, at *1 (2d Cir. Feb. 14, 2023) (citing Sacerdote, 939 F.3d at 506). Rule 16
scheduling orders, like the one in Massapequa’s existing case, (Massapequa, Min. Entry
dated Jan. 22, 2024, Dkt. No. 25), set deadlines for both amendments adding claims and
amendments joining additional parties. See, e.g., Weisshaus v. Port Auth. of N.Y. & N.J.,
No. 21-CV-2062, 2023 WL 3603414, at *2–*3 (E.D.N.Y. May 23, 2023). Those deadlines
have now lapsed in Massapequa. Of course, new parties not in privity with those in
pending cases are free to assert their own claims in a new separate action if they wish to
do so, with the caveat that doing so may delay resolution of Caramore’s claims if the
actions are related.
CONCLUSION
In summary, in the NAGA case, Defendants’ motion to dismiss is granted. The
NAGA Plaintiffs’ Complaint is dismissed in its entirety, without prejudice, for lack of
standing. In light of the dismissal, their motion for a preliminary injunction is
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necessarily denied. Where a plaintiff lacks standing to bring a claim, the Court “need
not address the factors to be considered in deciding whether to award a preliminary
injunction.” Rojas v. Cigna Health & Life Ins. Co., 793 F.3d 253, 259 (2d Cir. 2015).
Instead, the Court “should deny the motion and dismiss the case for lack of subject
matter jurisdiction.” E.g., Nat’l Prods. Ass’n v. James, No. 23-CV-8912, 2024 WL 2977683,
at *4 (E.D.N.Y. June 13, 2024).
The Massapequa Plaintiffs’ motion to amend is denied with respect to all claims
brought by the District, its Board, and Caramore in her official capacity. Each of these
claims is dismissed without prejudice for lack of standing, with the exception of the Bill
of Attainder claim, which is dismissed without prejudice on the merits. These Plaintiffs
are denied leave to amend. Plaintiff Caramore’s First Amendment claims brought in
her individual capacity may proceed, and as such, the motion to amend is granted with
respect to these claims.
A chart summarizing the Court’s rulings on the parties’ claims follows this
opinion as Appendix A. Any amended complaint in the NAGA action must be filed by
December 29, 2025. The Clerk of Court is directed to file the Massapequa PAC, (Dkt.
No. 66-2), as a separate docket entry in the Massapequa action. Defendants’ time to
respond or otherwise move in response to the Massapequa PAC runs from the date of
the Clerk’s filing.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
Date: 	November 14, 2025 	United States District Judge
Central Islip, New York
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APPENDIX A
School
District
School
Board
Caramore
(Individual
Capacity)
NAGA 	Finkenbinder
Overbreadth
Free Speech
Political Speech
Not Asserted
Not Asserted
Not Asserted	Merits Dismissal 	Not Asserted
Bill of Attainder
No Standing/
11th Amendment Bar
State & Federal Equal Protection, State Free Speech, Federal Due Process
No Standing/
11th Amendment Bar
Not Asserted
Not Asserted
Not Asserted
No Standing /
No Capacity to Sue
Title VII
No Standing 	Not Asserted
First Amendment
May Proceed
No Standing
No Standing/
11th Amendment Bar
Title VI, Section 1981, Dormant Commerce Clause, Indian Commerce Clause
Not Asserted
No Standing /
No Capacity to Sue
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