CHINESE AMERICAN CITIZENS ALLIANCE GREATER NEW YORK v. NEW YORK CITY DEPARTMENT OF EDUCATION (2025)

REPORT AND RECOMMENDATION

Plaintiffs Chinese American Citizens Alliance Greater New York (“CACAGNY”), Phillip Yan Hing Wong, Siu-Lin Linda Lam, George Lee, Xuhui Ni, and Lucas Liu (collectively “Plaintiffs”) bring this action against the New York City Department of Education (the “DOE”), the City of New York (the “City”), Police Officer Yergey Dym, Assistant Principal Jason Marino, and four John Does (collectively “Defendants”). Plaintiffs’ claims arise from a ban on signs at a DOE Town Hall meeting held at a Brooklyn high school on February 4, 2020, where Plaintiffs intended to protest DOE policies and actions they felt discriminated against the Asian American community. Plaintiffs assert claims under 42 U.S.C. § 1983 for violations of their First Amendment right to free speech, Fourteenth Amendment right to equal protection, and Fourth Amendment right to be free from unreasonable search and seizure. Plaintiffs also assert claims under state law based on violations of the parallel provisions in the New York State Constitution, for assault and battery, and under the doctrine of respondeat superior.

Before the Court are the parties’ cross-motions for summary judgment. Defendants seek summary judgment on all of Plaintiffs’ claims. (Dkt. Nos. 107, 109). Plaintiffs oppose Defendants’ motion for summary judgment and cross-move for partial summary judgment on their First Amendment claim. (Dkt. Nos. 119, 124).

For the reasons set forth below, the undersigned respectfully recommends:

• that Defendants’ motion for summary judgment be GRANTED as to Plaintiffs’ First Amendment claim and that Plaintiffs’ cross-motion for summary judgment be DENIED;

• that Defendants’ motion for summary judgment be GRANTED IN PART and DENIED IN PART as to Plaintiffs’ Fourteenth Amendment claim and the corresponding claim under the New York State Constitution; and

• that Defendants’ motion for summary judgment be GRANTED as to Plaintiffs’ Fourth Amendment claim, Plaintiffs’ remaining claims under the New York State Constitution, and Plaintiffs’ assault and battery claim.

BACKGROUND

A. Local Civil Rule 56.1

Local Civil Rules 56.1(a) and (b) require that a party moving for summary judgment “file ‘a separate, short[,] and concise statement ․ of the material facts to which the moving party contends there is no genuine issue to be tried,’ ‘followed by citation to evidence’ ” that would be admissible under Fed. R. Civ. P. 56(c). Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 138 F. Supp. 3d 352, 393 (S.D.N.Y. 2015), aff'd, 945 F.3d 83 (2d Cir. 2019). “The party opposing the motion must ‘include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.’ ” KLS Diversified Master Fund, L.P. v. McDevitt, 507 F. Supp. 3d 508, 527 (S.D.N.Y. 2020) (quoting Loc. Civ. R. 56.1(b)), aff'd, No. 21-1263, 2022 WL 2759055 (2d Cir. July 13, 2022).

“[A] Rule 56.1 statement ‘is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.’ ” Congregation Rabbinical Coll. of Tartikov, Inc., 138 F. Supp. 3d at 394 (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001)). “For that reason, ‘where the record does not support the assertions in a Local 56.1 statement, those assertions [are] disregarded and the record reviewed independently.’ ” Id. (citing Holtz, 258 F.3d at 74); see also KLS Diversified Master Fund, L.P., 507 F. Supp. 3d at 528 (“Pursuant to Local Civil Rule 56.1, the movant's ‘statements are deemed to be admitted where [the non-moving party] has failed to specifically controvert them with citations to the record.’ ” (quoting Knight v. N.Y.C. Hous. Auth., No. 03 Civ. 2746 (DAB), 2007 WL 313435, at *1 (S.D.N.Y. Feb. 2, 2007))); Epstein v. Kemper Ins. Co., 210 F. Supp. 2d 308, 314 (S.D.N.Y. 2002) (“Statements in an affidavit or Rule 56.1 statement are inappropriate if they are not based on personal knowledge, contain inadmissible hearsay, are conclusory or argumentative, or do not cite to supporting evidence.”).

Defendants filed a 56.1 Statement in support of their Motion for Summary Judgment as to all causes of action (Dkt. No. 110 (“D. 56.1”)), and Plaintiffs filed a 56.1 Statement in support of their Motion for Summary Judgment as to their First Amendment claim (Dkt. No. 123 (“P. 56.1”)). Both parties filed responses to their opponent's 56.1 Statement pursuant to Local Civil Rule 56.1(b). (Dkt. Nos. 118 (“P. Resp. 56.1”), 136 (“D. Resp. 56.1”)). However, both parties’ compliance with the requirements of Local Civil Rule 56.1 leaves much to be desired.

Defendants argue that because Plaintiffs “failed to cite to admissible evidence [in their 56.1 Statement] to support their motion for summary judgment under Federal Rule of Civil Procedure 56,” Plaintiffs’ motion should be denied. (Dkt. No. 135 (“Defendants’ Opposition” or “D. Opp.”) at 3). Plaintiffs argue that they have adhered to the requirements in both Local Civil Rule 56.1 and Fed. R. Civ. P. 56(c). (Dkt. No. 140 (“Reply” or “P. Rep.”) at 2–3). Plaintiffs are incorrect.

Putting aside the question of whether Plaintiffs cite to admissible evidence, Plaintiffs fail to cite to any evidence whatsoever in at least twenty-nine of their seventy-three paragraphs. (See P. 56.1 ¶¶ 2, 11–13, 16–18, 30, 32–34, 36, 38–39, 41, 43, 46, 51, 53, 55–60, 70–73). Further, when Plaintiffs do cite to evidence in the record, as required by Fed. R. Civ. P. 56(c), the citation is often incorrect or demarcated in a way that makes it difficult to identify what Plaintiffs are referring to. (See e.g., id. ¶¶ 5 (citing generally to entire 56-page Wong deposition), 6 (cite does not support all propositions), 9 (citing generally to entire 63-page Ni deposition), 28 (Plaintiff cites to “Photo Exhibits 1, 2 and 3” but no photo evidence submitted by Plaintiffs is identified this way), 37 (cited page does not support all propositions)). In many of the paragraphs where Plaintiffs do provide cites, they cite generally to video evidence without specifying where in the video the relevant evidence may be found. (E.g., id. ¶¶ 63–69). Plaintiffs also improperly use their 56.1 Statement to make legal arguments. Kesner v. Buhl, 590 F. Supp. 3d 680, 691 (S.D.N.Y. 2022) (determining that “portions of [plaintiff's] 56.1 Statement that contain legal argument” should be “set aside”), aff'd sub nom. Kesner v. Dow Jones & Co., Inc., No. 22-875, 2023 WL 4072929 (2d Cir. June 20, 2023). All this has resulted in a 56.1 Statement that is wholly unhelpful to the Court.

For their part, Defendants unhelpfully “deny” facts that they themselves have admitted or incorporate into their own briefing, such as the fact that the Town Hall was scheduled to take place on February 4, 2020 at James Madison High School. (D. Resp. 56.1 ¶ 32; see Dkt. No. 109 (“Mot.”) at 1). Defendants also “deny” that Plaintiffs are Asian Americans, though they do not dispute that Plaintiffs are part of a suspect class (see D. Resp. 56.1 ¶¶ 5–9), and “deny” that there was a gathering outside of the School prior to the Town Hall despite citing to photographic evidence of the rally (see id. ¶ 35; D. 56.1 ¶ 10; Dkt. No. 108 (“Weekes Decl.”) Ex. I; Mot. at 1, 5). These denials lack substance and also are unhelpful to the Court.

The purpose of the 56.1 Statements is “ ‘to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties.’ ” Congregation Rabbinical Coll. of Tartikov, Inc., 138 F. Supp. 3d at 393–94 (quoting Holtz, 258 F.3d at 74). Unfortunately, the parties’ submissions did not accomplish this objective, requiring the Court to sift through the record as a result.

The Court nonetheless rejects Defendants’ request to deny Plaintiffs’ summary judgment motion solely on the basis of the procedural errors in Plaintiffs’ 56.1 Statement as the Court retains the ability to review the record independently. “A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.” Holtz, 258 F.3d at 73 (holding that “while a court ‘is not required to consider what the parties fail to point out’ in their Local Rule 56.1 statements, it may in its discretion opt to ‘conduct an assiduous review of the record’ even where one of the parties has failed to file such a statement” (quoting Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000)); see Cui v. Fed. Bureau of Investigation, 551 F. Supp. 3d 4, 15 (E.D.N.Y. 2021) (“Because Plaintiffs, who are represented by counsel, ․ fail[ed] to respond to each assertion in Defendant's 56.1 Statement, and otherwise proffer[ed] statements without citations to evidence, the Court will deem the facts in Defendant's 56.1 Statement as admitted where supported by the record. However, the Court declines to grant summary judgment based on Plaintiff's failure to file a 56.1 Statement and reviews the merits of the motion.”) (citations omitted).

B. Parties

Plaintiff CACAGNY is a nonprofit advocacy group that represents the interests of Asian Americans in New York City. (P. 56.1 ¶ 2; Dkt. No. 108 Ex. B (“Lam Dep.”) at 91:7–8; Mission, CACAGNY, http://www.cacagny.org/about-us.html (last visited July 11, 2025)). Four of the five individual Plaintiffs (Ni being the exception) are members of CACAGNY. Lee is a founding member, Lam is a board member, and Wong became the organization's president in March 2020. (Lam Dep. 90:7–13; Dkt. No. 108 Ex. E (“Lee Dep.”) at 18:4–10; Dkt. No. 108 Ex. F (“Liu Dep.”) at 13:23–25; Dkt. No. 108 Ex. D (“Wong Dep.”) at 14:2–15). All five individual Plaintiffs attended the relevant DOE Town Hall meeting held on February 4, 2020. Some of them had children who were then attending, or had previously attended, DOE public schools. (Dkt. No. 108 Ex. G (“Ni Dep.”) at 18:6–8; Liu Dep. 26:6–8; Wong Dep. 11:2–5; Lee Dep. 19:18–24; P. 56.1 ¶¶ 5, 8–9).

Defendants include the City; the DOE;¹ Jason Marino, a DOE-employed Assistant Principal at James Madison High School (Dkt. No 108 Ex. C (“Marino Dep.”) 6:5–11; Dkt. No. 118 ¶ 2); and Yergey Dym, an NYPD Officer (id.). Both Marino and Dym were present at the School on February 4, 2020. (D. 56.1 ¶¶ 51–52; Marino Dep. 8:2–6; Lam Dep. 100:1–11).

C. Factual Background 2

1. Events Preceding the Town Hall Incident

The circumstances preceding the Town Hall meeting at issue in this action provide relevant context for understanding the events at the meeting.³

“In June 2018, the [DOE] revised the admission policy at eight of its highly selective Specialized High Schools (‘SHSs’), with the stated goal of creating a wider and more diverse pool of applicants for the SHSs.” Chinese Am. Citizens All. of Greater New York v. Adams, 116 F.4th 161, 164 (2d Cir. 2024) (“Adams”); NYC City Hall Press Office, “Mayor de Blasio and Chancellor Carranza Announce Plan to Improve Diversity at Specialized High Schools,” City of N.Y. (June 3, 2018), https://www.nyc.gov/office-of-the-mayor/news/281-18/mayor-de-blasio-chancellor-carranza-plan-improve-diversity-specialized-high#/0. “[T]he City's modeling ․ projected that the changes to the Discovery Program would decrease the number of Asian Americans at the SHSs.” Adams, 116 F.4th at 167. “Although the revised admissions policy was facially race-neutral, many Asian American organizations believed that it unfairly discriminated against high-achieving Asian American students.” Id.

In December 2018, CACAGNY, together with other organizations and individuals, including Plaintiff Wong, sued Mayor Bill de Blasio and the New York City Schools Chancellor, Richard A. Carranza, claiming that the new admissions policy discriminated against Asian American applicants to the SHSs and violated the Equal Protection Clause. See id. at 164; Christa McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio, 627 F. Supp. 3d 253, 256, 260 (S.D.N.Y. 2022) (district court's summary judgment ruling); Wong Dep. 12:5–14. The new SHSs policy also triggered protests by Asian Americans and others. See, e.g., Selim Algar, Protesters Rip de Blasio's Proposed Admissions Overhaul, N.Y. Post (June 15, 2018), https://nypost.com/2018/06/15/protesters-rip-de-blasios-proposed-admissions-overhaul (reporting on protest at City Hall).

Following the introduction of the former Mayor's overhaul plan, it was reported that Jackie Cody, a member of Community Education Council 22 in Brooklyn, had used a racial slur to refer to Asian Americans in an online forum when discussing the plan. This led to increased backlash and additional protests by the Asian American community. See, e.g., Brooklyn School Board Member Sparks Outrage, Community Demands She Resign After Using Racial Slur Against Asians, CBS News (Nov. 13, 2019), https://www.cbsnews.com/newyork/news/school-board-racial-slur-asians; “You Have Lost All Our Trust”: Parents Rally Against School Board Member Who Used Racial Slur Against Asians, CBS News (Dec. 3, 2019), https://www.cbsnews.com/newyork/news/you-have-lost-all-our-trust-brooklyn-parents-rally-against-school-board-member-who-used-racial-slur-against-asian.

Protests by members of the Asian American community extended to regularly scheduled “Town Hall” meetings with Schools Chancellor Carranza. (Marino Dep. 22:21–24, 23:8–11; Lee Dep. 25:10–14; Ni Dep. 28:24–29:5). These Town Hall meetings, hosted by local Community Education Councils (“CECs”),⁴ are designed as an opportunity for the DOE Chancellor to engage in dialogue with parents and other members of the school district community. (P. 56.1 ¶ 21; Dkt. No. 108 Ex. H (“Edwards Dep.”) at 8:11–18; NYC Public Schools, CEC online meeting portal, https://learndoe.org/cec (last visited July 22, 2025) (describing Town Halls as “an opportunity to share information, hear of the communities concerns and respond to questions”).⁵ At a Town Hall meeting on January 7, 2020, as well as a meeting of a DOE Panel on Education Policy (“PEP”) on January 29, 2020, protesters displayed signs denouncing “Carranza's Racist Policies” and calling for Carranza, as well as Jackie Cody, to be fired. (Dkt. No. 119 Ex. 1 (“Schwartz Decl.”) ¶¶ 8–9 & Exs. A-2, A-3, B-2).

2. The Ban on Signs for the February 4, 2020 Town Hall

On February 4, 2020, CEC 22 held a Town Hall meeting at James Madison High School in Brooklyn, New York (the “School”). (D. 56.1 ¶4; P. 56.1 ¶ 30; Marino Dep. Ex. C at 8:14–19). In advance of this meeting, Craig Edwards, the DOE's Borough Safety Director for Brooklyn, spoke with his supervisor, Mark Rampersant, a citywide chief of safety and prevention partnerships, who reported directly to Chancellor Carranza. (Edwards Dep. 5:2–10, 6:25–7:17). Rampersant instructed Edwards “that no one would enter or could enter the venue with signs.” (Edwards Dep. 12:5–21). When Edwards arrived at the School around 5:30 p.m., he met with NYPD and school safety personnel, including Defendant Marino, the School's Assistant Principal for Security and of Guidance, and relayed Rampersant's instruction. (Edwards Dep. 16:20–25 to 17:2–19; Marino Dep. 7:4–15, 9:24–10:3, 37:13–19).

It is undisputed that, during the year prior to February 2020, individuals attending Town Hall meetings (as well as CEC and PEP meetings) held in public schools were not barred from bringing signs into the meeting, provided the signs were not attached to sticks or poles. (P. 56.1 ¶ 61; see also Wong Dep. 26:6–9 (prior to February 4, 2020, Wong was not denied entry into any Town Hall meeting while carrying a sign); Liu Dep. 20:24–21:5 (Liu carried a sign into one or two Town Halls prior to February 4, 2020); Lee Dep. 25:13–18 (“We were always able to hold signs.”); Ni Dep. 29:2–4 (Ni took signs into other Town Hall meetings before February 4, 2020)). The same is true for meetings held after February 2020. (P. 56.1 ¶ 62; Wong Dep. 25:21–26:5; Lee Dep. 25:10–18).⁶

The record does not make clear why a blanket ban on signs was imposed in advance of the February 4, 2020 Town Hall. Based on his conversation with Rampersant, Edwards understood that there was a “concern” related to prior Town Halls in other boroughs, but Edwards did not know what Rampersant was concerned about. (Edwards Dep. 13:2–16 (answering “[t]hat's above my pay grade” when asked what the concern was); see also Marino Dep. 22:14–23:11 (when asked about the reason for the ban on signs, Marino stated that he overhead other school safety agents talking about a “similar protest” at “a school in Queens,”⁷ but “not anything about signs”)). Rampersant was not deposed by Plaintiffs and Defendants did not submit an affidavit from him.

It is also unclear when Rampersant issued the ban. Edwards did not recall and testified “[i]t might [have]” been the same day as the February 4, 2020 Town Hall. (Edwards Dep. 11:19–12:11). Edwards was clear, however, that at no time did Rampersant or anyone else instruct him to deny entry into the Town Hall to individuals who appeared to be Asian American. (Id. 41:18–42:8; see also Marino Dep. 34:5–16 (Marino's testimony that he never received such an instruction)).

3. The February 4, 2020 Town Hall Event

a. The Pre-Town Hall Sidewalk Protest

Prior to the Town Hall, Plaintiffs gathered outside on the sidewalk near the entrance of the School with 20–40 individuals to engage in protest. (D. 56.1 ¶¶ 10–11, 16; Mot. at 7; P. 56.1 ¶ 35). The protest focused on (1) Mayor de Blasio and Chancellor Carranza's policies, including the plan to overhaul the SHSs admissions policy, and (2) the allegedly discriminatory remarks made by CEC 22 Councilmember Cody and the DOE's response to those remarks. (See Ni Dep. 21:25–22:7; Lam Dep. 17:6–10, 19:19–22, 24:16–23, 41:11–17; Lee Dep. 17:16–18:3; Liu Dep. 19:19–20:6; Wong Dep. 15:1–13).

At the protest, Plaintiffs and others displayed signs critical of the DOE, Chancellor Carranza, and Councilmember Cody. (D. 56.1 ¶¶ 10–11; 16–17; Lam Dep. 24:16–23; Wong Dep. 15:1–13; Weekes Decl. Ex. I; Schwartz Decl. Exs. C-1, C-2). The messages included: “Fire Carranza”; “Carranza Spreads Anti-Semitic & Anti-Asian Rhetoric”; “Asians Fighting Back Racism from the DOE!!,”; and “We are not yellow!” (Weekes Decl. Ex. I; Schwartz Decl. Ex. C-1, C-2). Most of the protesters were Asian individuals, and most held signs or posters. (D. 56.1 ¶ 16). The protest lasted approximately half an hour. (Id. ¶ 17).

b. The Sign Ban as Applied to Plaintiffs

As the Town Hall start time drew near, Plaintiffs ended their protest outside the School and began making their way toward the building entrance with their signs. (Id. ¶ 12). When Plaintiffs attempted to enter the School, they were met with resistance from Edwards, Marino, Dym, and other safety personnel, who prevented Plaintiffs from entering the School with signs. (Id. ¶ 12; P. 56.1 ¶ 42). Each Plaintiff testified at deposition about his or her experience.

i. Plaintiff Lam

When Plaintiff Lam first arrived at the School, she did not have posters or signs with her and she entered the School, without incident, to save herself a seat in the auditorium for the Town Hall. (P. 56.1 ¶ 37; D. 56.1 ¶ 15; Lam Dep. 23:5–23). She then went back outside the School to join the protest. (D. 56.1 ¶ 17; Lam Dep. 24:24–25:2). When the protest ended, Lam attempted to re-enter the School, this time with a sign that did not have a pole or stick (Lam Dep. 25:6–9), but was stopped on the sidewalk, along with other protesters, by DOE and City personnel, including Defendant Marino. (D, 56.1 ¶ 18; Lam Dep. 26:5–9, 21–23, 27:4–7; Weekes Decl. Ex. K 00:00–47). The protestors, including Lam, were told that they could not enter with signs. (D. 56.1 ¶ 18; Weekes Decl. Ex. K 00:00–47).⁸

While the protestors and City personnel were arguing in the courtyard of the School, Lam attempted to go around DOE personnel and officers, sign visible in her hands, but was then stopped. (D. 56.1 ¶ 19; Weekes Decl. Ex. K 00:46–58). Video evidence shows that officers joined DOE officials to stand between Lam and the staircase leading to the School entrance. (Weekes Decl. Ex. K 00:46–58). Lam, still holding her sign, then moved to the right of the officials and officers and ran up the stairs, at which point the unnamed DOE official, Marino, and the officers went up the stairs and closed the open door to the School. (Id.; Lam Dep. 28:3–13; D. 56.1 ¶ 19; Weekes Decl. Ex. K 00:59–01:05). They then stood in front of the doors blocking Lam and the protesters from entering. (Lam Dep. 29:8–11; Weekes Decl. Ex. K 01:05–15). The unnamed official can be heard repeating, “no signs, no signs” on the video. (Weekes Decl. Ex. K. 0:01:08–0:01:14; D. 56.1 ¶ 20). At this point, Lam can be seen still holding her sign. (Weekes Decl. Ex. K at 0:01:15).

Lam then went behind one of the officers and the unnamed official and attempted to enter while holding her bag which contained her sign. (D. 56.1 ¶ 21; Lam Dep. 45:11–16). Marino followed Lam, grabbed her arm, and moved between Lam and the door. (Lam Dep. 31:11–16; Weekes Decl. Ex. K 00:02:13–02:20). Video footage shows Lam pushing Marino away from her and yelling, “let go of me.” (Weekes Decl. Ex. K 00:02:15–20). She testified that Marino “grab[bed] and push[ed her]” to “stop [her] from going inside,” causing her to freeze in the doorway. (Lam Dep. 32:11–13). Lam testified, and the video shows, that officers then joined Marino to prevent Lam from entering and asked her to step out of the doorway, but she refused. (Weekes Decl. Ex. K 00:02:13–3:35; D. 56.1 ¶ 21; Lam Dep. 32:18–21, 33:2–12; P. 56.1 ¶ 40). Lam testified that “an officer standing at [her] back” eventually “use[d] his arm to nudge [her] back and push [her] ․ out.” (Lam Dep. 33:25–34:2; P. 56.1 ¶ 41).

Lam then made a third attempt to enter the School. This time, she put her sign into a knapsack and gave it to “another parent who decided not to go inside.” (Lam Dep. 44:19–25, 45:2–10; D. 56.1 ¶ 24). She opened her coat to show that she no longer had a sign and was admitted. (D. 56.1 ¶ 24; Lam Dep. 44:24–45:1).

Once inside, Lam spoke with the CEC 22 Superintendent, who directed her to the Acting Deputy Chancellor, Adrienne Austin. (Lam Dep. 46:2–5; P. 56.1 ¶ 44; see Liu Dep. 32:15). Lam told Deputy Chancellor Austin that Asian attendees were not being let in with signs, and Austin explained to Lam that “everybody was supposed to be able to come in with the signs” so long as they were not affixed to sticks. (D. 56.1 ¶ 25; P. 56.1 ¶ 44–45; Lam Dep. 46:6–11). Austin then advised a school safety officer and police officer that signs not affixed to sticks were allowed in. (D. 56.1 ¶ 25; Lam Dep. 46:12–18). The record does not make clear at what point during the evening these conversations occurred.

ii. Plaintiff Wong

Shortly after arriving at the school, Plaintiff Wong left to get markers to write on the cardboard and poster board brought by parents to make signs. (Wong Dep. 15:17–23; D. 56.1 ¶ 28). When Wong returned, he was told by other protesters that people were being denied entry because they had signs. (Wong Dep. 16:17–17:4; D. 56.1 ¶ 29). At first, Wong stood off to the side of the doors but did not attempt to enter because he had signs with him. (Wong Dep. 17:23–18:5, 18:14–15). However, after waiting “many minutes,” Wong was eventually allowed to enter the Town Hall with his signs. (Id. at 23:15–24). Other Asian attendees were also let in with signs at that time. (Id. at 23:20–22). This appears to have occurred after Lam spoke with Deputy Chancellor Austin. (Id. at 33:10–22).

iii. Plaintiff Lee

Plaintiff Lee attended both the Town Hall and the protest beforehand, taking photographs depicting the events giving rise to the allegations in this action. (D. 56.1 ¶ 31). Lee did not have a sign at any point but took pictures throughout the events. (Lee Dep. 20:20–24). When the protest ended, Lee, along with other protesters, attempted to enter the School. (Id. at 22:6–12). They “crowd[ed]” around the City officials at the single open entrance but were prevented from entering the School by officials announcing, “no signs.” (Id. at 24:6–12). Lee opened his coat to show that he did not have a sign. (D. 56.1 ¶ 35; P. 56.1 ¶ 50; Lee Dep. 26:21–27:2). Still, the officer initially did not let Lee enter. (Lee Dep. 27:2–5). Eventually, however, Lee was admitted to the Town Hall. (D. 56.1 ¶ 35; P. 56.1 ¶ 51; Lee Dep. 21:9–11, 29:3–5).

iv. Plaintiff Liu

Plaintiff Liu arrived to the School intending to attend the Town Hall and the protest held beforehand. (Liu Dep. 12:20–13:2). When Liu arrived, people were already attempting to enter the School. (Id. at 15:3–4). Liu did not have a sign but had fliers he intended to distribute during the Town Hall. (Id. at 15:8–18). But when Liu attempted to enter the School, he was stopped and prevented from entering with the fliers. (Id. at 16:9–11). Liu gave the fliers to somebody else, displayed his hands to show he no longer had the fliers, and was then let into the School. (Id. at 16:9–13, 20:13–20).

v. Plaintiff Ni

When Plaintiff Ni arrived at the Town Hall, he joined the protest outside of the School. (Ni Dep. 16:8–15). At the protest Ni was handed a sign by another participant. (Id. at 16:14–15, 17:7–9). When the Town Hall was about to start, Ni, with his sign rolled up in his hand, moved with the other protesters to enter the School. (Id. at 16:16–21, 21:7–8). Ni was told by two unidentified individuals when he began to climb the stairs to the School entrance that he could not enter with the sign, so he went back outside. (Id. at 21:9–14). Ni then attempted to enter the School, but an officer stopped him and made him open his coat to show that he did not have a sign. (Id. at 23:8–13, 18-25, 24:4–9; Weekes Decl. Ex. K 02:35–46). Although Ni testified that he did not have a sign at this time and was turned away anyway (Ni Dep. 24:2–9, 14–18), he later testified that once he left his sign on the outside steps, he was finally let in. (Id. at 25:2–6). The video evidence also shows him unrolling a sign and laying it out on the steps outside the School after being denied entry. (Weekes Decl. Ex. K 02:55–03:04).⁹

c. The Sign Ban as Applied to Others

According to Defendants, the ban on signs was applied in an evenhanded and non-discriminatory manner. Edwards’ criteria for determining whether or not to allow entry into the School was simply “[w]hether or not they had signs.” (Edwards Dep. 42:22–43:3). Marino similarly testified that he “was just looking for signs” and “didn't look for any other characteristic,” including whether the individual was Asian. (Marino Dep. 14:17–25). If someone had a sign, they would be asked to discard it and would then be allowed to enter. (Edwards Dep. 14:4–9). Conversely, if the person did not have a sign, they would be let in. (Marino Dep. 15:11–16 (“Everyone that didn't have a sign was let in[.]”)).

Plaintiffs dispute this. According to Plaintiffs, while Asian attendees were being stopped, non-Asian attendees were being let into the School. (Lam Dep. 21:9–11 (“We were being stopped selectively. Only the Asians were stopped. All the non-Asians were allowed in.”); Lee Dep. 27:3–8 (“[T]his whole sign thing was a red herring. It was just using it as an excuse to stop Chinese from getting in․ [I]n the meantime, a lot of non-Chinese, whites and blacks, were being let in.”); Liu Dep. 18:18–19 (“Only Asians were being stopped. And at the same time, they were letting non-Asians go by.”). Some Asian attendees were, like Lee, prevented from entering even though they were not carrying signs or had surrendered their signs. (Lee Dep. 28:21–23 (“I knew that several did not have signs, and they were not let in. And they were Chinese, I should add.”), 36:3–11 (“Chinese people were giving signs to [an individual collecting signs], so that they could get in. But they still couldn't get in.”); Liu Dep. 18:10–13 (noting that some people who were stopped from entering had signs, “but I know not everyone did”)).

Moreover, two of the Plaintiffs testified that non-Asian individuals with signs were allowed into the venue. While he and other Asian attendees holding signs were waiting “many minutes” to enter, Wong said he saw non-Asian attendees with signs being allowed in. (Wong Dep. 23:20–24:4 (“Q: During the time you were waiting to go in, did you observe any non-Asians be let into the meeting with a sign? A: Yes. Yes, I did. Yes, I did. They were wa[ ]ved in.”)). Similarly, Lam testified that while she was waiting, she observed non-Asian attendees with signs being allowed to go into the Town Hall. (Lam Dep. 21:12–15 (“Q: And at any point that you were waiting to go in, did you see anyone who had a sign allowed to go into the town hall? A: Yes, those are non-Asians.”), 31:25–32:7). However, the video footage from the event submitted on this motion, which comprises approximately seven minutes, does not show any non-Asian individuals visibly carrying signs and being let into the School. (Weekes Decl. Exs. J–K).

All Plaintiffs ultimately were allowed into the Town Hall. There is no evidence that any Asian American individual who wanted to attend the Town Hall was barred from attending. And once Deputy Chancellor Austin modified the restriction to allow signs that were not affixed to sticks—though it is unclear when or how this occurred—Asian American attendees such as Wong brought their signs into the Town Hall.¹⁰ (Lam Dep. 46:25–47:9; Wong Dep. 33:10–22; Weekes Decl. Ex. I (second to last photo); Schwartz Decl. Exs. C-1, C-2).

d. The Town Hall

The Town Hall began around 6:30 p.m. (Lam Dep. 29:4–7, 109:25). Chancellor Carranza attended and spoke. (Lee Dep. 30:7; Wong Dep. 30:1–4). According to Plaintiffs, in a departure from his usual practice, Carranza did not take any questions from the audience and left after he was finished speaking. (Lee Dep. 30:1–8; Wong Dep. 30:10–16, 31:2–6).

The meeting ended at that point, and people started chanting and holding up signs. (Wong Dep. 31:7–20). Members of the Asian American community took out their signs because they were “very upset they didn't get to ask questions.” (Lee Dep. 30:8–10). Then non-Asian attendees who had brought in signs took their signs out as well. (Lee Dep. 30:10–12). Photos from inside the venue show numerous individuals holding signs (not affixed to sticks or poles) at what appears to be the conclusion of the Town Hall. (Schwartz Decl. Exs. C-1, C-2; see also Marino Dep. 27:3–5 (Marino's testimony that when people were holding signs as shown by photographic evidence, the meeting “was over”)). The signs captured in the photographs all appear to be critical of the DOE, Carranza, and Cody, bearing messages similar or identical to those displayed during the sidewalk protest prior to the Town Hall, such as “Carranza's Racist Policies Spread Hate,” “Asians Are Not YELLOW!!,” “CEC 22: Jackie Cody MUST Go!!!” and “Carranza is Silencing Parents w. His Security Detail.” (Weekes Decl. Ex. I (second to last photo); Schwartz Decl. Exs. C-1, C-2).

It is undisputed that there were no events inside the Town Hall that gave rise to any of Plaintiffs’ claims. (D. 56.1 ¶ 26).

D. Procedural History

Plaintiffs commenced this case as a putative class action on October 27, 2020, naming the DOE, Chancellor Carranza in his official capacity, former New York City Mayor Bill de Blasio in his official capacity, Assistant Principal Marino individually and in his official capacity, and seven John Does. (Dkt. No. 1). Defendants answered the Complaint on January 19, 2021. (Dkt. No. 24). After the exchange of initial disclosures, service of some interrogatories, and an unsuccessful settlement conference in August 2021, the case fell dormant for about two years, with the docket reflecting no activity of any substance during that period. (Dkt. No. 78 at 3, 12–14). In September 2023, an amended Order of Reference was issued to include general pretrial supervision, which was reassigned to the undersigned. (See Dkt. No. 43 and Dkt. Entries on September 18, 2023).

The undersigned held an Initial Case Management Conference on October 19, 2023 (see Dkt. Entry on October 19, 2023) and entered a Case Management Plan and Scheduling Order with a fact discovery deadline of April 30, 2024. (Dkt. No. 51). The Court subsequently granted two extensions of the discovery deadline. (Dkt. Nos. 64, 99). Nevertheless, in the four years that this case was pending before Defendants moved for summary judgment, apparently very little discovery was conducted. So far as the record reflects, only the five individual Plaintiffs, Edwards, and Marino were deposed. To the extent emails, text messages, and other documents were sought and produced, not a single one has found its way into the summary judgment record.

On April 25, 2024, the Court granted in part Plaintiffs’ motion for leave to file an amended complaint. (Dkt. No 78). Plaintiffs filed their First Amended Complaint (“FAC”) on May 15, 2024. (Dkt. No. 83). The FAC dismissed former Mayor de Blasio and former Chancellor Carranza as defendants, again named the DOE, the City, and Assistant Principal Marino as well as four John Does, and added Police Officer Dym.¹¹ (See Dkt. No. 78 at 3–4). The FAC also dropped Plaintiffs’ class action allegations and several of the causes of action in the original Complaint. (See id. at 3).

The FAC pleads eight causes of action. The first seven claims are pled against all Defendants: (1) violation of Plaintiffs’ First Amendment right to free speech under the U.S. Constitution (FAC ¶¶ 106–12); (2) violation of Plaintiffs’ Fourteenth Amendment right to equal protection (id. ¶¶ 113–16); (3) violation of Plaintiffs’ equal protection rights under Article 1, Section 11 of the New York State Constitution (id. ¶¶ 117–20); (4) violation of Plaintiffs’ free speech rights under Article 1, Section 8 of the New York State Constitution (id. ¶¶ 121–23); (5) violation of Plaintiffs’ Fourth Amendment right to be from unlawful search and seizure (id. ¶¶ 124–26); (6) violation of Plaintiff's right to be free from unlawful stops and searches under Article 1, Section 12 of the New York State Constitution (id. ¶¶ 127–29); and (7) a claim for assault and battery under New York state law (id. ¶¶ 130–32). The eighth claim seeks to impose respondeat superior liability against the City and DOE. (Id. ¶¶ 133–41).

On October 7, 2024, Defendants moved for summary judgment as to all of Plaintiffs’ causes of action (Dkt. Nos. 107–10), accompanied by a declaration from defense counsel with attached exhibits (Dkt. No. 108), a Memorandum of Law in Support of Defendants’ Motion (Dkt. No. 109), and Defendants’ 56.1 Statement (Dkt. No. 110).

After multiple extensions (see Dkt. Nos. 111–17), Plaintiffs filed their papers in opposition to Defendants’ Motion and in support of Plaintiffs’ Cross-Motion for Partial Summary Judgment on Plaintiffs’ First Amendment claim, late and piecemeal, between December 13 and 18, 2024. (Dkt. Nos. 118–24). These papers included a Cross-Motion (Dkt. No. 119), a declaration from Plaintiffs’ counsel (Dkt. No. 119 Ex. 1) and attached exhibits (Dkt. No. 119 Exs. 2–13), Plaintiffs’ Response to Defendants’ 56.1 Statement (Dkt. No. 118), Plaintiffs’ 56.1 Statement (Dkt. No. 123), and a Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment and in Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment (Dkt. No. 124 (“P. Opp.”)).

Defendants also received several extensions (Dkt. Nos. 122, 131, 133) before filing their Opposition and Reply (Dkt. No. 135 (“D. Opp.”)), and Defendants’ Response to Plaintiffs’ 56.1 Statement (Dkt. No. 136) on February 19, 2025. Plaintiffs filed their Reply in support of their Cross-Motion on March 10, 2025. (Dkt. No. 140).

LEGAL STANDARDS

“Granting summary judgment is appropriate when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Pantoja v. Enciso, No. 18 Civ. 11842 (PAE) (GWG), 2019 WL 6704684, at *4 (S.D.N.Y. Dec. 10, 2019) (quoting Fed. R. Civ. P. 56(a)), R&R adopted, 2020 WL 70919 (S.D.N.Y. Jan. 6, 2020). “A genuine issue of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “ ‘[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment.’ ” Id. (quoting Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997)).

“[A]t summary judgment, a court's responsibility ‘is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.’ ” Whitehurst v. 230 Fifth, Inc., 998 F. Supp. 2d 233, 249 n.11 (S.D.N.Y. 2014) (quoting Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)). “ ‘Assessments of credibility and choices between conflicting versions of the events are matters for the [factfinder], not for the court on summary judgment.’ ” Id. (quoting Jeffreys v. City of New York, 426 F.3d 549, 553–54 (2d Cir. 2005)). “However, ‘[t]he mere existence of a scintilla of evidence in support of the [nonmovant]’s position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].’ ” Jeffreys, 426 F.3d at 554 (quoting Anderson, 477 U.S. at 252).

The party moving for summary judgment “bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to ‘set forth specific facts showing that there is a genuine issue for trial,’ and to present such evidence that would allow a jury to find in his favor.” Minus v. City of New York, 488 F. Supp. 3d 58, 63 (S.D.N.Y. 2020) (quoting Anderson, 477 U.S. at 256). “[A]t the summary judgment stage, the court accepts the facts as stated in Plaintiff's deposition transcript or affidavit, to the extent they are not contradicted by the record.” Ali v. Connick, 136 F. Supp. 3d 270, 279 (E.D.N.Y. 2015). “[T]he Court must ‘resolve all ambiguities and draw all justifiable factual inferences in favor of the party against whom summary judgment is sought.’ ” Guillen v. City of New York, 625 F. Supp. 3d 139, 149 (S.D.N.Y. 2022) (quoting Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008)). “ ‘[I]f there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party,’ summary judgment must be denied.” Minus, 488 F. Supp. 3d at 63 (quoting Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002)). “At the same time, however, in considering what may reasonably be inferred from witness testimony, the court should not accord the nonmoving party the benefit of unreasonable inferences, or inferences at war with undisputed facts.” Ramlogan v. White, No. 20 Civ. 5879 (JPC), 2024 WL 1313417, at *4 (S.D.N.Y. Mar. 27, 2024) (cleaned up).

“When evaluating cross-motions for summary judgment, the Court ‘must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’ ” Furnishare Inc. v. Travelers Prop. Cas. Co. of Am., 671 F. Supp. 3d 353, 360 (S.D.N.Y. 2023) (quoting Coutard v. Mun. Credit Union, 848 F.3d 102, 114 (2d Cir. 2017)). “ ‘[W]hen both sides move for summary judgment, neither side is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment, as a matter of law, against it.’ ” Lovati v. Petroleos de Venezuela, S.A., No. 19 Civ. 04799 (ALC) (HJR), 2025 WL 951499, at *3 (S.D.N.Y. Mar. 28, 2025) (quoting Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)).

DISCUSSION

The Court first addresses Plaintiffs’ claim for violation of their free speech rights under the First Amendment—their lead claim and the only one on which both sides have cross-moved for summary judgment. The Court then addresses Defendants’ motion for summary judgment as it relates to the remaining claims in the FAC.

A. Plaintiffs’ First Amendment Claim

1. Free Speech Principles

“The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.” Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 804 (2019). While the First Amendment “guarantees freedom of speech,” it “ ‘does not guarantee the right to communicate ․ at all times and places or in any manner that may be desired.’ ” Kass v. City of New York, 864 F.3d 200, 207 (2d Cir. 2017) (quoting Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981)). “A private citizen asserting a First Amendment claim against a public official must establish that: ‘(1) he has a right protected by the First Amendment; (2) the defendant's actions were motivated or substantially caused by his exercise of that right; and (3) the defendant's actions caused him some injury.’ ” Hoefer v. Bd. of Educ. of the Enlarged City Sch. Dist. of Middletown, No. 10 Civ. 3244 (ER), 2017 WL 2462660, at *4 (S.D.N.Y. June 6, 2017) (quoting Dorsett v. Cnty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013)).

a. Forum-Based Approach

Courts “ ‘analyze speech restrictions on publicly owned property according to a forum-based approach.’ ” Potanovic v. Town of Stony Point, No. 23-204, 2024 WL 3159221, at *1 (2d Cir. June 25, 2024) (quoting Tyler v. City of Kingston, 74 F.4th 57, 61 (2d Cir. 2023)). “As a general matter, the government is permitted to exercise control over the public's use of government-owned property for expressive purposes, and the degree of control permitted depends upon the nature of the property and the speech restrictions imposed thereon.” Hotel Emps. & Rest. Emps. Union, Loc. 100 of N.Y., N.Y. & Vicinity, AFL CIO v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 544 (2d Cir. 2002) (“Hotel Emps.”) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799–800 (1985)). “Under this approach, ‘[f]ora for expression are classified into four categories, which fall along a spectrum extending from those deserving the greatest constitutional protection to those deserving the least constitutional protection: (1) the traditional public forum; (2) the designated public forum; (3) the limited public forum; and (4) the non-public forum.’ ” Tyler, 74 F.4th at 61 (quoting R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533, 539 (2d Cir. 2011)).

Traditional public forums are places “that ‘by long tradition ․ have been devoted to assembly and debate.’ ” Bronx Household of Faith v. Cmty. Sch. Dist. No. 10, 127 F.3d 207, 211 (2d Cir. 1997) (quoting Perry Educ. Ass'n v. Perry Local Educators’ Ass'n, 460 U.S. 37, 45 (1983)). “In a traditional public forum—parks, streets, sidewalks, and the like—the government may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited.” Minnesota Voters All. v. Mansky, 585 U.S. 1, 11 (2018). Strict scrutiny requires that the restriction “be narrowly tailored to serve a compelling government interest.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009).

The next category is a designated public forum. “A ‘designated public forum’ is a place that, although not traditionally open for public assembly and debate, ‘the government has taken affirmative steps to open for general public discourse.’ ” Johnson v. Perry, 859 F.3d 156, 172 (2d Cir. 2017) (quoting Peck ex rel. Peck v. Baldwinsville Cent. Sch. Dist., 426 F.3d 617, 626 (2d Cir. 2005)). “ ‘Speech in a designated public forum is entitled to the same constitutional protection as that extended to expression in a traditional public forum, so long as the state continues to designate the forum for such use.’ ” Id. (quoting Peck, 426 F.3d at 626). Thus, strict scrutiny also applies to restrictions on speech within a designated public forum. Pleasant Grove City, 555 U.S. at 469–70.

Next is the limited public forum, which is “[a] subset of the designated public forum” and “exists ‘where the government opens a non-public forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain subjects.’ ” Hotel Emps., 311 F.3d at 545 (quoting N.Y. Mag. v. Metro. Transp. Auth., 136 F.3d 123, 128 n.2 (2d Cir. 1998)). This forum type differs from a designated public forum in that the government opens the forum for a specific limited purpose rather than for “general public discourse.” Johnson, 859 F.3d at 172. “ ‘In limited public fora, strict scrutiny is accorded only to restrictions on speech that falls within the designated category for which the forum has been opened.’ ” Alexander, 747 F. Supp. 3d at 546 (quoting Hotel Emps., 311 F.3d at 545)). “For ‘expressive uses not falling within the limited category for which the forum has been opened, restrictions need only be viewpoint neutral and reasonable.’ ” Tyler, 74 F.4th at 61–62 (quoting Hotel Emps., 311 F.3d at 546); see Pleasant Grove City, 555 U.S. at 470 (“[A] government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects. In such a forum, a government entity may impose restrictions on speech that are reasonable and viewpoint neutral.” (citations omitted)).

Finally, non-public forums encompass “all remaining public property, that is, property that the government has not opened for expressive activity by members of the public.” Hotel Emps., 311 F.3d at 546. “The government may restrict speech in non-public fora subject only to the requirements of reasonableness and viewpoint neutrality.” Id.

b. Tyler v. City of Kingston

After this action was commenced, the Second Circuit in Tyler v. City of Kingston, supra, upheld the dismissal of a First Amendment challenge to a ban on signs at a city council meeting. In Tyler, the Kingston Common Council imposed a blanket ban on signs a few days before a public meeting at Kingston City Hall was to be held to discuss whether the city would purchase an armored rescue vehicle. 74 F.4th at 59–60. Plaintiffs, community activists affiliated with organizations focused on police misconduct and diversity issues, planned to protest the proposed purchase at the council meeting. Id. When the plaintiffs arrived at City Hall with signs demonstrating their opposition to the purchase, they were stopped by police informing them that signs were now prohibited and that they could only attend the meeting without their signs. Id. at 60. Plaintiffs then sued, asserting that the City's sign prohibition violated the First Amendment. Id.

The district court dismissed the action pursuant to Fed. R. Civ. P. 12(b)(6), ruling that a City Council meeting is a limited public forum; that the prohibition on signs fell outside the category of uses to which the forum had been opened and, hence, strict scrutiny did not apply; and that plaintiffs had failed to sufficiently allege that the prohibition was either unreasonable or discriminated on the basis of viewpoint. Tyler v. City of Kingston, 593 F. Supp. 3d 27 (N.D.N.Y. 2022). The Second Circuit affirmed. The court held that “in limited public fora such as city council meetings, government entities are permitted to restrict the form or manner of speech offered by members of the public, even if such speech addresses the topic or agenda of that forum.” Tyler, 74 F.4th at 63. Thus, “restrictions on the form of speech,” such as the prohibition on signs at issue, “are not subject to strict scrutiny; courts need only assess whether the restrictions are reasonable and viewpoint neutral.” Id. The Second Circuit, noting that “[m]any district courts have upheld similar sign prohibitions at public meetings,” agreed with the district court's conclusion that the plaintiffs had not plausibly alleged that the city's sign prohibition was unreasonable. Id. at 64–65 & n.5.¹²

In upholding the sign prohibition, the Second Circuit rejected the plaintiffs’ argument that the city's purported interest raised a factual issue requiring discovery. Id. at 64. The court reasoned that “courts can take notice of government interests that ‘ring[ ] of common sense,’ ” id. (quoting Hotel Emps., 311 F.3d at 554), and that the plaintiffs had not adequately alleged that “the sign prohibition was unreasonable in relation to the City's common-sense interest in running efficient and orderly meetings,” id. The court highlighted the absence of allegations that the plaintiffs were “disabled from voicing their views” at the meeting or barred from using their signs “as part of protest activities on ‘the public sidewalks surrounding’ City Hall.” Id. (quoting Hotel Emps., 311 F.3d at 556). The court explained that the signs the plaintiffs intended to use “could have been visually disruptive and interfered with the decorum of the meetings.” Id. at 65. The court also rejected the plaintiffs’ arguments that they had a First Amendment “right to offer silent public comment throughout Common Council meetings” and that the Common Council was required to institute “more narrow restrictions on signs.” Id.

At the end of its analysis, the Second Circuit noted: “To be sure, there may be cases where restrictions on the form or manner of speech—including the use of signs—in a limited public forum would be unreasonable[.]” Id. at 66. The plaintiffs in Tyler, however, “ha[d] not pled such facts[.]” Id.

2. Application

The parties lock horns at each step of the First Amendment analysis: what category of forum the Town Hall falls into; what level of scrutiny applies to the ban on signs at the Town Hall; and whether the ban passes muster under the relevant test. Central to these arguments is whether the outcome of this case is (as Defendants contend) or is not (as Plaintiffs contend) controlled by the Second Circuit's decision in Tyler. The Court addresses each step of the analysis below.

a. Forum

Plaintiffs argue that Defendants created “a designated public forum subject to strict scrutiny” by opening up “a nontraditional public forum—a public high school—for expressive use by the general public.” (P. Opp. at 28). Defendants counter that Town Hall meetings, “where parents gather to discuss educational policy, district events, and other school-related matters, are a limited public forum.” (Mot. at 4 (citing N.Y. Mag, 136 F.3d at 128 n.2)). Thus, Defendants contend that a restriction on the manner of expression, such as bringing signs and posters into the Town Hall, is subject to the more relaxed standard of constitutional review requiring that such manner of restrictions be only reasonable and viewpoint neutral. (Mot. at 3–7). The Court agrees with Defendants and concludes that the Town Hall meeting was a limited public forum.

As explained above, a limited public forum is created when a non-public forum is opened to the public for a limited purpose, and a designated public forum is created when a non-public forum is opened for general public discourse, as a traditional public forum would be used. Here, as Plaintiffs themselves assert, the purpose of holding the Town Hall on February 4, 2020 was not to open the School for general public assembly and debate, but for the limited purpose of “having a dialogue with the DOE” (P. Opp. at 28; P. 56.1 ¶ 21) and to discuss “DOE issues” (P. Rep. at 4; P. 56.1 ¶ 21); see also FAC ¶ 36 (alleging that primary purpose of Town Hall meetings is for Chancellor to engage in dialogue with school community “around issues relating to the education of the City's” public school children). In other words, Plaintiffs concede that a nonpublic forum, the School, was opened for the limited purpose of a dialogue with the DOE and a discussion around education. This falls squarely within the definition of a limited public forum: a forum where discussion is limited to “particular subjects.” See, e.g., Hotel Emps., 311 F.3d at 552 (“In general, a limited public forum is created when the government opens a non-public forum for public expression, but limits expressive activity to certain kinds of speakers or the discussion of particular subjects.”).

Plaintiffs argue that a designated public forum was created because the School was opened “for expressive use by the general public” and because “[t]here were no limitations on who could attend or who could speak at the Town Hall.” (P. Opp. at 28). But these arguments misapprehend the distinction between designated and limited public forums. The distinction turns not on whether the forum was opened up to the general public but on whether it was opened for a limited purpose. See, e.g., Komatsu v. City of N.Y., No. 20 Civ. 7046 (ER), 2021 WL 3038498, at *7 (S.D.N.Y. July 16, 2021) (“ ‘Numerous courts have held that city council meetings which have been opened to the public are limited public fora.’ ” (quoting Smith v. City of Middletown, No. 09 Civ. 1431 (JCH), 2011 WL 3859738, at *4 (D. Conn. Sept. 1, 2011))); Frierson v. Troy City Sch. Dist. Bd. of Educ., No. 17 Civ. 44 (MAD/CFH), 2018 WL 1357373, at *4 (N.D.N.Y. Mar. 15, 2018) (while “[a] school is generally considered a nonpublic forum,” a school gymnasium that was “open to the public” for interschool basketball games was “a limited public forum”); Trinity United Methodist Parish v. Bd. of Educ. of City Sch. Dist. of City of Newburgh, 907 F. Supp. 707, 713 (S.D.N.Y. 1995) (limited public forum exists where a designated public forum is “created for a limited purpose, such as use by certain groups or for the discussion of certain subjects”) (citations omitted)). Here, it is undisputed that the School was not opened to the public for speech activities generally, but only for a specific public activity.

Furthermore, any argument that allowing public comment at a meeting converts a limited public forum to a designated forum has been flatly rejected by courts in the Second Circuit. See Potanovic, 2024 WL 3159221, at *1 (“[T]he public input component of the Town Board meetings is clearly a limited public forum.”); Santucci v. Levine, No. 17 Civ. 10204 (NSR), 2019 WL 3742286, at *10 (S.D.N.Y. Aug. 8, 2019) (“ ‘Courts have generally held that a public meeting of an elected municipal board ․ is a limited public forum for the purposes of First Amendment analysis.’ This includes the public comment portions of municipal board meetings.” (quoting Malta v. Slagle, No. 05 Civ. 342S, 2007 WL 952045, at *3 (W.D.N.Y. Mar. 29, 2007))); Smith, 2011 WL 3859738, at *4 (“[T]he public comment period during the Council meeting [also] constitute[s] a limited public forum.”).

Applying these principles, courts have found the following to be examples of a limited public forum: (1) public city council meetings, Tyler, 593 F. Supp. 3d at 31; Smith, 2011 WL 3859738, at *4; (2) open school board meetings, Hotel Empl., 311 F.3d at 545; Hoefer, 2017 WL 2462660, at *6 (“An open school board meeting, such as the Board Meeting, is a limited public forum.”); (3) CEC meetings, Alexander, 747 F. Supp. 3d at 551 (“CEC 14's meetings constitute a limited public forum.”); and (4) a Town Hall meeting opened “to public expression for the limited purpose of allowing attendees to hear the Mayor speak and, potentially, ask the Mayor questions,” Komatsu v. City of New York, No. 18 Civ. 3698 (LGS), 2019 WL 4805904, at *4 (S.D.N.Y. Sept. 30, 2019). The CEC Town Hall at issue here cannot be meaningfully distinguished from these examples. Accordingly, the Court finds that the Town Hall was a limited public forum.

b. Level of Scrutiny

Determining that the Town Hall was a limited public forum does not resolve the issue of whether the restriction on signs triggers “strict scrutiny” (requiring that the restriction be narrowly tailored to serve a compelling government interest) or, instead, “minimal constitutional scrutiny” (requiring only that the restriction be reasonable and viewpoint neutral). See Tyler, 74 F.4th at 61–62. As noted above, the level of scrutiny to be applied in limited public forum cases depends on whether the restriction is on speech “ ‘that falls within the designated category for which the forum has been opened.’ ” Id. at 62 (quoting Hotel Emps., 311 F.3d at 545).

Plaintiffs argue that, even if the Town Hall was a limited public forum, “strict scrutiny is the applicable standard to evaluate Defendants’ restriction on Plaintiffs’ speech because their speech falls within the designated category for which the forum was opened.” (P. Opp. at 30). Plaintiffs assert that the School was opened for the Chancellor and DOE representatives to have “open discussion and communication with concerned community members,” which included Plaintiffs, and “the genre of their messaging”—i.e., their protest signs—“pertained to DOE matters.” (Id.). Thus, Plaintiffs reason, their “speech falls within the category of uses to which the Town Hall was opened” and strict scrutiny applies. (Id. at 30–31).

Unfortunately for Plaintiffs, their argument is directly contrary to the Second Circuit's holding and reasoning in Tyler. Like Plaintiffs here, the plaintiffs in Tyler argued that strict scrutiny applied because their protest signs “address[ed] matters directly on the Common Council's agenda,” i.e., the proposed purchase of the armored rescue vehicle opposed by plaintiffs. 74 F.4th at 62. The Second Circuit rejected that argument, finding that “[e]ven if the signs relate to matters on the Common Council's agenda, they may still undermine the purpose for which the forum was created.” Id. “[T]he form or manner in which the public participates at Common Council meetings,” the court explained, “may certainly undermine the purpose for which the forum was created—e.g., to facilitate meaningful discourse on matters of the legislative agenda.” Id. (emphasis in original). Thus, the fact that the blanket ban on signs “limit[ed] the form or manner of speech” did not mean it was subject to strict scrutiny. Id. at 63. Consequently, the Second Circuit squarely held that “government entities are permitted to restrict the form or manner of speech offered by members of the public” without triggering strict scrutiny, “even if such speech addresses the topic or agenda of that forum.” Id. (emphasis added).

Contrary to Plaintiffs’ contention, therefore, the fact that DOE's ban on signs limited Plaintiffs’ speech on topics to be discussed at the Town Hall does not mean that strict scrutiny applies. As in Tyler, the blanket ban on signs here is clearly a restriction on the form or manner of Plaintiffs’ speech—i.e., how they could speak—not a restriction on what Plaintiffs could say. See Tyler, 593 F. Supp. 3d at 32 (“[T]he government was permitted to regulate how the public presented its message, so long as it did not discriminate on the content of the message.”); Tyler, 794 F.4th at 62 (“The distinction that the district court drew between the topic of the speech and the form or manner in which such speech is delivered is consistent with our precedents.”).

As such, the Court concludes that the ban on signs in the Town Hall is a restriction on “the form or manner of speech” that “courts need only assess [for] whether the restrictions are reasonable and viewpoint neutral.” Tyler, 74 F.4th at 63. The Court thus proceeds to that assessment.

c. Reasonableness

“In a limited public forum, the reasonableness analysis turns on the particular purpose and characteristics of the forum and the extent to which the restrictions on speech are ‘reasonably related’ to maintaining the environment the government intended to create in that forum.” Id. (citing Hotel Emps., 311 F.3d at 554); see also Cornelius, 473 U.S. at 809 (“The reasonableness of the Government's restriction of access to a nonpublic forum must be assessed in the light of the purpose of the forum and all the surrounding circumstances.”). “Significantly, the existence of ‘alternative channels’ of communication is a relevant factor in assessing the reasonableness of a restriction on speech in a limited public forum.” Tyler, 74 F.4th at 63–64 (quoting Perry, 460 U.S. at 53).

Defendants assert that the sign ban was reasonable because it was “clearly” motivated to further the City's interest in “holding a safe, efficient, and orderly meeting free from interference.” (Mot. at 5). Defendants also note that Plaintiffs had other alternative channels to express their message and be heard by City officials, including “an opportunity to display their signs and voice their views outside the entrance of the building,” and to “display[ ] their signs at the conclusion of the meeting, inside and outside the building.” (Id. at 5–6). Relying heavily on the Second Circuit's decision in Tyler, Defendants argue that the ban on signs here is, in substance, the very restriction that was upheld as reasonable in that case. (Id. at 6–8).

At the outset, the Court notes that the City's motivation in imposing the sign ban for the Town Hall is anything but “clear.” As Plaintiffs note, Defendants do not point to any evidence in the record establishing the reason why signs were banned at this particular Town Hall meeting. (P. Opp. at 29). Tyler makes clear, however, that Defendants were not required to adduce such evidence on this motion. Tyler dismissed the plaintiffs’ First Amendment claim on a Rule 12(b)(6) motion, prior to any discovery into, or factual showing as to, the motivation for the sign ban. It did so based on the city's “common-sense interest” in prohibiting signs that could be “visually disruptive” and “interfere[ ] with the decorum of the meetings.” Tyler, 94 F.4th at 64–65. That same common-sense interest supports the reasonableness of the sign ban in this case. Notably, unlike in Tyler, Plaintiffs were given an opportunity to develop evidence in discovery that would undermine this common-sense interest in a sign ban and show that the City had ulterior or unlawful motivations in this case. But Plaintiffs completely failed to develop any such evidence. In light of Tyler, the lack of clarity in the record as to the reason for the sign ban must weigh against Plaintiffs, not Defendants.

In support of their contention that the sign ban was unreasonable, Plaintiffs argue that this case is distinguishable from Tyler on various grounds, but their arguments are unavailing. First, Plaintiffs assert that in Tyler, “official business on the legislative agenda was being conducted in addition to public commentary,” whereas here “Defendants were not conducting any official business at the Town Hall.” (P. Opp. at 31). Plaintiffs thus argue that because in their view the “sole purpose” of the Town Hall was to hear from the community, it is not reasonable for the government to limit the method or manner in which community views are expressed. (Id. at 31–32).

Neither reason nor authority supports Plaintiffs’ argument. No court has held that signs must be allowed into a limited public forum so long as no “official business” of a governmental body is being conducted therein. Even assuming the fundamental purpose of the Town Hall was to facilitate a dialogue between DOE officials and members of the school community, that does not mean the City lacked the same “common-sense interest in running efficient and orderly meetings,” Tyler, 74 F.4th at 64, that is true of a legislative session. “[R]egulations are ‘permissible if [they] preserve[ ] the purposes of that limited forum,’ ” and “[a] reasonable restriction may prohibit disruptive behavior[.]” Komatsu, 2019 WL 4805904, at *4 (quoting Bronx Household, 650 F.3d at 36). Signs may be “visually disruptive,” Tyler, 74 F.4th at 65, and thereby undermine the purpose of a limited public forum to allow members of the public and government officials to see and hear one another, quite apart from whether any “official business” is being conducted. See Tyler, 593 F. Supp. 3d at 33–34 (noting that “it is not unreasonable for Kingston to want to keep its meeting reserved for spoken comment from the public on relevant issues while excluding signs or other demonstrable items that might distract from that intended environment of an efficient discourse”); We the People, Inc. of the U.S. v. Nuclear Reg. Comm'n, 746 F. Supp. 213, 217-18 (D.D.C. 1990) (finding prohibition of “visually disruptive” posters reasonable because NRC meetings “are designed to allow the public to observe the [NRC's] decision-making process” and display of posters may “impede[ ] the public's observation”). Further, the ban on signs may be a reasonable restriction to “ ‘keep[ ] the tenor of [Town Hall] meetings from devolving into a picketing session inside’ ” the School. Tyler, 74 F.4th at 64 (quoting Tyler, 593 F. Supp. 3d at 33).

Second, Plaintiffs argue that in Tyler, the Common Council had adopted its rule banning signs “days before” the controversial meeting in question, whereas here “no such rule or prohibition on signs was ever passed by the DOE” and the decision to ban signs from this Town Hall was made “on an ad-hoc basis to prevent Plaintiffs from entering the Town Hall” with signs. (P. Opp. at 32). But the salient facts here and in Tyler are the same. There, as here, the plaintiffs alleged that “the sign ban was enacted just before the [ ] meeting in a deliberate attempt to curb their ability to protest.” Tyler, 593 F. Supp. 3d at 30. The district court found that the “suspicious timing” of the sign ban was insufficient even to allege at the pleading stage that the ban was unreasonable: “even if the Court assumes that the last-second imposition of the sign ban suggests that the City intended to target plaintiffs, that does not amount to a constitutional violation in the absence of any suggestion that plaintiffs were treated differently than their opponents.” Id. at 34. And the Second Circuit “agree[d] with the district court's conclusion that Plaintiffs have not plausibly alleged that the City's sign prohibition was unreasonable in relation to the City's interest in the forum[.]” Tyler, 74 F.4th at 64.

Third, Plaintiffs argue that, unlike in Tyler, the signs Plaintiffs sought to display here were not “on cardboard poles” but “on poster board, smaller, and easily foldable,” and “the content of the [signs]” did not “undermine[ ] the forum's purpose of hearing from the community.” (P. Opp. at 32–33). But there is no indication that the signs at issue in Tyler were on “poles.” They are described as “large (2+ foot-wide) cardboard posters,” Tyler, 74 F.4th at 65, and based on the photographic evidence, the signs here were at least as large and no less likely to be visually disruptive. (See Weekes Decl. Ex. I; Schwartz Decl. Exs. C-1, C-2). Moreover, the Second Circuit in Tyler took it as a given that the plaintiffs’ signs were “neither vulgar nor obscene,” and, as here, the messages on the signs bore directly on the issue that the Common Council meeting was intended to address. Tyler, 74 F.4th at 59–60. The court held all the same that the signs “appear to have the potential for disrupting the orderliness of the proceedings.” Id. at 65. And the court upheld as reasonable the city's blanket ban on all signs, see id. at 60, 64 (“No signs or posters allowed inside the building.”), rejecting plaintiffs’ argument that “signs generally are ‘less disruptive or intrusive than public comments.’ ” Id. at 65.

As in Tyler, “Plaintiffs do not allege that they were disabled from voicing their views at the [Town Hall] meeting, nor do they allege that they could not use their signs as part of protest activities on ‘the public sidewalks surrounding’ ” the School. Id. at 64. Plaintiffs evidently believe they had a right under the First Amendment to protest by means of displaying signs during the Town Hall. (See, e.g., Lee Dep. 45:21–46:5 (explaining he was told by another parent that he had “a first amendment right to bring signs”); Ni Dep. 40:18–19 (“I believe it is our right to bring the sign”)). But that belief, as the Second Circuit recognized in Tyler, is “mistaken”; it is well settled that members of the public do not “have a right to offer comment in any form they desire throughout public meetings.” 74 F.4th at 65; see also Potanovic, 2024 WL 3159221, at *2 (“[T]he First Amendment does not confer a right to compel governments to create a limited public forum of a particular scope and character.”); Kass, 864 F.3d at 207 (First Amendment “does not guarantee the right to communicate” one's views “in any manner that may be desired.”) (cleaned up). Thus, while Plaintiffs may have preferred to be able to express their dissent through signs, such a preference does not make the restriction unreasonable.

The Court thus concludes that there can be no genuine dispute of material fact as to whether the sign ban is “reasonable” within the meaning of First Amendment jurisprudence pertaining to limited public forums.

d. Viewpoint Neutral

In addition to being reasonable, the restriction on speech must also be viewpoint neutral to withstand the minimal standard of constitutional scrutiny afforded restrictions in limited public forums. “Viewpoint discrimination is a subset of content discrimination, which ‘extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.’ ” Hoefer, 2017 WL 2462660, at *5 (quoting Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 169 (2015)). “Viewpoint discrimination, which is based on ‘the specific motivating ideology or the opinion or perspective of the speaker[,] is a more blatant and egregious form of content discrimination.’ ” Id. (quoting Reed, 576 U.S. at 169). “ ‘[T]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.’ ” Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (quoting City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). “[A] rule is neutral as to viewpoint if it is ‘based only upon the manner in which the speakers transmit their messages ․ and not upon the messages they carry[.]’ ” Tyler, 593 F. Supp. 3d at 32 (quoting Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 645 (1994)); see also Doe v. Salina, No. 23 Civ. 3529 (JMW), 2024 WL 5077629, at *20 (E.D.N.Y. Dec. 11, 2024).

“However, a reasonable justification for excluding a particular type of activity ‘cannot save an exclusion that is in fact based on the desire to suppress a particular point of view.’ ” We the People, Inc., 746 F. Supp. at 218 (quoting Cornelius, 473 U.S. at 812). “A reasonable limitation will still be struck down if it ‘is in reality a façade for viewpoint-based discrimination.’ ” Reyes v. City of New York, No. 23 Civ. 6369 (JGLC), 2023 WL 7212192, at *10 (S.D.N.Y. Nov. 2, 2023) (quoting Cornelius, 473 U.S. at 811). And while the government “ ‘is free to impose a blanket exclusion on certain types of speech’ ” in a limited public forum, “ ‘once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.’ ” Tyler, 74 F.4th at 61 (quoting Hotel Emps., 311 F.3d at 545–46).

Plaintiffs do not claim the sign ban is discriminatory on its face, nor could they since Rampersant's instructions to Edwards were that “no one ․ could enter the venue with signs.” (Edwards Dep. 12:18–21). Instead, Plaintiffs argue that the ban was adopted “on an ad-hoc basis to prevent Plaintiffs from entering the Town Hall” with signs “because [the signs] contained viewpoints that Defendants disagreed with.” (P. Opp. at 32). Plaintiffs further assert that Defendants’ purported justification for the ban is a mere “façade” for viewpoint discrimination, as evidenced by the fact that “the DOE had not banned signs at any other meeting[.]” (P. Rep. at 8). “Defendants’ true purpose in banning signs,” Plaintiffs assert, “was clearly ․ to shield the Chancellor from having to face signs which broadcast Plaintiffs’ dissenting viewpoint[.]” (Id.).

Defendants assert that the ban on signs was not only facially content-neutral, but also was applied in a content-neutral manner.¹³ (Mot. at 8–9). Defendants argue that the ban was “not targeted towards any particular speaker based upon his or her speech” and that the video evidence shows that the ban “was directed and applied to everyone attempting to enter the town hall meeting regardless of the message within the signs.” (Id. at 9). Defendants also assert that Plaintiffs’ allegations of viewpoint discrimination are “mere speculation and conjecture.” (D. Opp. at 5).

The parties disagree over whether attendees with signs expressing alternative views to those expressed by Plaintiffs were allowed into the Town Hall while Plaintiffs were prevented from entering with their signs critical of the DOE. In their 56.1 Statement, Defendants state that “[o]nly individuals with signs were denied entry” and that “[e]veryone who did not have a sign was allowed” in. (D. 56.1 ¶ 56). Defendants cite to Defendant Marino's deposition in which he stated that “[e]veryone that didn't have a sign was let in,” and emphasized that “anyone that was let in, didn't have a sign.” (Marino Dep. 15:14–16).

Plaintiffs’ 56.1 response claims that Marino's testimony “is contradicted by the testimony of Plaintiffs in numerous places,” but specifically cites only Lee's deposition transcript at pages 26–29. (P. Resp. 56.1 ¶ 56). Lee testified that he and other Asian attendees (and only Asians attendees) were “stop[ped] ․ from getting in,” even though they did not have signs. (Lee Dep. 27:1–5, 28:21–23). But Lee also acknowledged that at some point thereafter, he did get in and attended the Town Hall. (Lee Dep. 29:3–5). Nor does Lee (or Liu, who also testified that some Asian individuals who did not have signs were stopped from entering (Liu Dep. 18:10–13)) allege that any of these individuals were unable to attend the Town Hall. Accordingly, even crediting this testimony, it does not support Plaintiffs’ claim that their speech or that of other Asian Americans was regulated in a discriminatory manner based on their viewpoint.

Two Plaintiffs, Wong and Lam, testified that they saw non-Asian attendees let into the Town Hall with signs while Asian attendees were being denied entry. (Wong Dep. 23:25–24:4; Lam Dep. 21:12–15). But neither provides any evidence as to what message was conveyed in the signs carried by these attendees. In fact, no Plaintiff is able to point to photographic or video evidence of non-Asian attendees being let in with signs, and neither the photographs nor the videos provided by the parties show any signs expressing a view that opposes that of Plaintiffs. (Schwartz Decl. Exs. C-1, C-2; Weekes Decl. Exs. I–K).¹⁴

Thus, Plaintiffs do not appear to be arguing, or have evidence to support, that non-Asian (or Asian) attendees were let in with signs expressing a different viewpoint from their own. The Court also notes that in the video evidence, there is a protester wearing a “Fire Carranza” shirt that DOE personnel specifically refer to when asking the protester why his shirt would not be sufficient when explaining that signs could not come in. (Weekes Decl. Ex. K 00:33–37). This bolsters Defendants’ argument that they were banning signs—not viewpoints.

As for Plaintiffs’ argument that the circumstances surrounding the sign ban show that it was put in place to suppress Plaintiffs’ opposition to the DOE, this argument also fails. “[E]ven if a law or policy is ‘motivated by the conduct of the partisans on one side of a debate,’ that does not establish that the law or policy discriminates based on viewpoint.” Tyler, 593 F. Supp. 3d at 32 (quoting Hill v. Colorado, 530 U.S. 703, 724 (2000)). In the absence of sufficient evidence that “proponents of the policies they opposed were permitted to bring signs into [the Town Hall] or were otherwise treated differently from their opponents,” id., Plaintiffs have failed to raise a genuine dispute of fact as to whether they were the victims of viewpoint discrimination.

Plaintiffs do not get any closer to raising a triable issue through their repeated declamations that it is “apparent” or “clear[ ]” that Defendants banned Plaintiffs’ signs “because of what the signs said” and “because [they] contained viewpoints that Defendants disagreed with.” (P. Opp. at 32–33; P. Rep. at 8). To survive summary judgment, Plaintiffs were required to adduce proof to support these accusations. They have not done so. There is not even the proverbial scintilla of evidence—not a single statement from any DOE representative, not a single document—that Defendants’ “true purpose” (see P. Rep. at 8) was to suppress Plaintiffs’ speech while allowing expression of other viewpoints. See, e.g., Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003) (“ ‘Conclusory allegations, conjecture, and speculation ․ are insufficient to create a genuine issue of fact.’ ”).

As in Tyler, Plaintiffs here have also not “alleged that signs are more important to their cause than they would be to their opponents.’ ” Tyler, 593 F. Supp. 3d at 32 (quoting Perry v. McDonald, 280 F.3d 159, 170 (2d Cir. 2001)). And in any event, Plaintiffs acknowledge that they and other Asian attendees ultimately were allowed into the Town Hall with their signs and displayed them. Simply put, Plaintiffs have failed to raise a triable issue of fact that their point of view was restricted by the sign ban while those expressing alternative viewpoints were unrestrained.

In sum, the Court concludes that, as in Tyler, the Town Hall was a limited public forum; the sign ban is subject to relaxed First Amendment scrutiny and not strict scrutiny; and no reasonable fact-finder could conclude that the ban was either unreasonable or constituted viewpoint discrimination. Accordingly, the undersigned respectfully recommends that Defendants’ motion for summary judgment on Plaintiffs’ First Amendment claim be granted and that Plaintiffs’ cross-motion for summary judgment be denied.

B. Plaintiffs’ Equal Protection Claim

“The Equal Protection Clause prohibits states from ‘deny[ing] to any person within [their] jurisdiction the equal protection of the laws.’ ” Adams, 116 F.4th at 170 (quoting U.S. Const. amend. XIV, § 1). “At its core, the Equal Protection Clause ‘requires that the government treat all similarly situated people alike.’ ” N.Y. Cmtys. for Change v. Zayas, No. 22 Civ. 4298 (RA), 2024 WL 3759449, at *9 (S.D.N.Y. Aug. 12, 2024) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)), aff'd sub nom. Bergnes v. Zayas, No. 24-2434, 2025 WL 1466198 (2d Cir. May 22, 2025). “In order to establish a claim for an equal protection violation, a plaintiff must show that a government actor intentionally discriminated against [the plaintiff] ‘on the basis of race, national origin or gender.’ ” John v. Bridgeport Bd. of Educ., No. 09-cv-378 (VLB), 2011 WL 1106708, at *21 (D. Conn. Mar. 22, 2011) (quoting Hayden v. Cnty. of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)).

Applying Supreme Court precedent, the Second Circuit generally recognizes three types of equal protection violations: “(1) a facially discriminatory law or policy that expressly classifies individuals on the basis of race; (2) a facially neutral law that is enforced in a discriminatory fashion; and (3) a facially neutral law that was adopted with discriminatory intent and resulted in a discriminatory effect.” Adams, 116 F.4th at 170 (citing Chabad Lubavitch of Litchfield Cnty. v. Litchfield Historic Dist. Comm'n, 768 F.3d 183, 199 (2d Cir. 2014); see also Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, NY, 945 F.3d 83, 110–11 (2d Cir. 2019); Walston v. City of New York, No. 22 Civ. 10002 (LAK) (JW), 2024 WL 1376905, at *9 (S.D.N.Y. Mar. 7, 2024), R&R adopted, 2024 WL 1374837 (S.D.N.Y. Apr. 1, 2024). “Additionally, a plaintiff may claim selective prosecution or selective enforcement of the law based upon his or her membership in a particular class, compared with others similarly situated.” Savino v. Town of Southeast, 983 F. Supp. 2d 293, 301 (S.D.N.Y. 2013) (citing, inter alia, LeClair v. Saunders, 627 F.2d 606, 609–10 (2d Cir. 1980)), aff'd, 572 F. App'x 15 (2d Cir. 2014).

Plaintiffs’ equal protection claim alleges that Defendants discriminated against them as Asian Americans based on their “race, color, ethnicity, and/or national origin.” (See FAC ¶¶ 114–16). Plaintiffs do not allege that a facially discriminatory law, policy, or regulation is at play. Instead, Plaintiffs’ equal protection claim relies on a theory of selective enforcement of the sign ban (P. Opp. at 34; see FAC ¶ 115 (“Defendants selectively targeted Plaintiffs for unlawful, selective treatment ․ because they are Asian Americans.”)) and, in the alternative, on theories of “ ‘discriminatory application of the’ ” sign policy and “ ‘discriminatory motivation underlying a facially neutral policy or statute’ ” (P. Opp. at 34 (quoting Pyke v. Cuomo, 258 F.3d 107, 108–09 (2d Cir. 2001)). The Court assesses these three theories below, recognizing that Plaintiffs’ theory of “discriminatory motivation underlying a facially neutral policy” is a challenge to the sign ban itself, and that their other two theories—selective enforcement and discriminatory application of the sign ban—relate to how the sign ban was implemented at the Town Hall.

1. Facially Neutral Policy Adopted with Discriminatory Intent

“Plaintiffs challenging ․ facially neutral laws on equal protection grounds bear the burden of making out ‘a prima facie case of discriminatory purpose.’ ” Pyke v. Cuomo, 567 F.3d 74, 78 (2d Cir. 2009) (quoting Jana-Rock Constr., Inc. v. N.Y. Dep't of Econ. Dev., 438 F.3d 195, 204 (2d Cir. 2006)) (cleaned up). “Discriminatory purpose implies that the decisionmaker ․ selected or reaffirmed a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Congregation Rabbinical Coll. of Tartikov, 138 F. Supp. 3d at 407 (quoting Hayden, 180 F.3d at 50); see Cent. UTA of Monsey v. Vill. of Airmont, N.Y., No. 18 Civ. 11103 (VB), 2020 WL 377706, at *17 (S.D.N.Y. Jan. 23, 2020) (“ ‘Discriminatory intent or purpose typically refers to those instances when a government actor seeks to disadvantage or negatively impact a group of persons.’ ” (quoting Hayden, 180 F.3d at 50)). Plaintiffs are not required to prove that the challenged action “ ‘rested solely on racially discriminatory purposes;’ ” rather, “ ‘proof that a discriminatory purpose has been a motivating factor’ is sufficient.” Adams, 116 F.4th at 172 (quoting Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977)). But although “the desire to discriminate need not be the sole motivating factor, a plaintiff will only ‘be permitted to take his case to trial if he proffers evidence that strongly indicates that discrimination was a significant reason for a public body's actions[.]’ ” Congregation Rabbinical Coll. of Tartikov, 138 F. Supp. 3d at 407–08 (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 786 (2d Cir. 2007) (additional citation omitted)).

“Because discriminatory intent is rarely susceptible to direct proof,” Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010), “ ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available’ ” is often required, Cent. UTA of Monsey, 2020 WL 377706, at *17 (quoting Arlington Heights, 429 U.S. at 266). Courts should consider whether “[t]he impact of the official action ․ bears more heavily on one race than another.” Arlington Heights, 429 U.S. at 266 (cleaned up). “But unless a ‘clear pattern, unexplainable on grounds other than race, emerges ․ impact alone is not determinative, and the Court must look to other evidence’ ” to determine if a racially discriminatory intent existed. Hayden, 594 F.3d at 163–64 (quoting Arlington Heights, 429 U.S. at 266). Often referred to as the Arlington Heights factors, these additional indicia include the historical background for the decision, departures from normal procedures, substantive departures, and legislative and administrative history. Id. (citing Arlington Heights, 429 U.S. at 267–68); see Noel v. City of New York, No. 15 Civ. 5236 (LTS), 2023 WL 3160261, at *11 (S.D.N.Y. Apr. 28, 2023) (“The extent to which the impact of the Policy ‘bears more heavily on one race than another may provide an important starting point,’ and other relevant considerations include ‘the historical background of the decision ․ particularly if it reveals a series of official actions taken for invidious purposes, departures from the normal procedural sequence, substantive departures, and the legislative or administrative history ․ especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.’ ” (quoting Mhany Mgmt., Inc. v. Cnty. of Nassau, 819 F.3d 581, 606 (2d Cir. 2016)).

Although mentioned in passing in their brief (P. Opp. at 34), Plaintiffs do not develop or attempt to marshal facts in support of their theory that the sign ban was adopted with the purpose of discriminating against Asian individuals. Instead, Plaintiffs’ equal protection argument focuses entirely on how the sign ban was applied and enforced at the Town Hall meeting. (Id. at 34–37). Plaintiffs offer no evidence about why Rampersant issued the ban on signs for the February 4, 2020 Town Hall, nor any evidence that he anticipated a protest by Asian Americans at the Town Hall or targeted the ban at Asian Americans. Nor do Plaintiffs offer any evidence that Rampersant harbored any anti-Asian bias or has ever made any discriminatory remarks about Asians or Asian Americans. Nor do Plaintiffs offer any evidence of racial animus on the part of Carranza, Rampersant's boss—or, for that matter, any evidence that Carranza played any role in the decision to ban signs for the Town Hall. Simply put, the record is barren of any direct evidence that the ban was motivated by an invidious discriminatory purpose.

To be sure, CACAGNY alleges in its separate lawsuit challenging the DOE's new admissions policy for SHSs, which was spearheaded by Carranza, that the policy was racially motivated and intended to discriminate against Asian Americans. (See P. Opp. at 8–9; FAC ¶ 41; Adams, 116 F.4th at 164).¹⁵ But Plaintiffs “cannot defeat summary judgment by relying on allegations in [their] pleadings.” Nunez v. Diedrick, No. 14 Civ. 4182 (RJS), 2017 WL 2257350, at *4 (S.D.N.Y. May 18, 2017) (citation omitted). And Plaintiffs offer no evidence on this motion that Carranza or anyone else at the DOE acted with discriminatory intent in proposing the new SHSs policy. Thus, even assuming arguendo, that such evidence might have a bearing on whether the sign ban was adopted with discriminatory intent, no such evidence is found in the record here.

Similarly, it is true that there had been protests by members of the Asian American community, including at Town Halls and other DOE meetings, prior to the sign ban. (Lam Dep. 41:25–42:11; P. 56.1 ¶ 22–23; see supra at 9–10). But Plaintiffs failed to develop or present any evidence that the sign ban was imposed in response to those events. Just three weeks prior to the February 4, 2020 Town Hall, according to Plaintiffs’ own summary judgment papers, angry protesters had forced Carranza to leave the stage at a Town Hall in Queens. (P. 56.1 ¶ 23; see supra at 12 & n.7). The controversy at that Town Hall, however, appears to have had nothing to do with the SHS policy or any issue relating specifically to the Asian American community. Based on this record, it would be unduly speculative to infer that the sign ban was intended to target Asian Americans based on their race. And “a party cannot defeat summary judgment through rank speculation of racial animus.” Alfaro v. Labrador, No. 06 Civ. 1470 (JS) (WDW), 2009 WL 2525128, at *7 (E.D.N.Y. Aug. 14, 2009) (citation omitted).

Thus, the historical background to the sign ban does not justify a reasonable inference that the sign ban was animated by racial bias. And although the blanket prohibition on all signs, as opposed to signs affixed to sticks or poles, was a departure from DOE past practice, this fact, standing alone, is not enough to support an inference of invidious purpose. See Arlington Heights, 429 U.S. at 269 n.19 (rejecting plaintiffs’ reliance on “one apparent procedural departure” as proof of discriminatory purpose in the absence of additional evidence regarding the significance of the departure). Likewise insufficient is the impact of the ban on Asian American protestors, especially since Deputy Chancellor Austin modified the ban to permit signs with sticks as soon as Lam complained to her about it. (Lam Dep. 46:6–18; Wong Dep. 33:10–22). The circumstantial evidence, viewed through the lens of the Arlington Heights factors, thus does not support a finding of intentional discrimination.

In short, Plaintiffs have failed to carry their burden of adducing sufficient evidence at summary judgment to make out a prima facie case that the sign ban was adopted with a discriminatory purpose. See Pyke, 567 F.3d at 78–79 (affirming grant of summary judgment where plaintiffs “failed to proffer enough evidence of discriminatory intent” to “raise a material issue on the existence of such intent”) (emphasis omitted). Accordingly, this theory of equal protection liability fails to survive summary judgment.

2. Selective Enforcement

“[T]o prevail on a selective-enforcement claim, ‘a plaintiff must prove that (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations,’ ” Thomas v. Genova, No. 23-7452, 2025 WL 583182, at *3 (2d Cir. Feb. 24, 2025) (quoting Hu v. City of New York, 927 F.3d 81, 91 (2d Cir. 2019)), “ ‘such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person,’ ” Bar-Levy v. Gerow, No. 18 Civ. 9454 (NSR), 2020 WL 814925, at *5 (S.D.N.Y. Feb. 19, 2020) (quoting Tyk v. Surat, 675 F. App'x 40, 42 (2d Cir. 2017)). “ ‘A plaintiff generally must satisfy both elements to establish a claim of selective enforcement.’ ” Savino, 983 F. Supp. 2d at 305 (quoting LaTrieste Rest. v. Vill. of Port Chester, 188 F.3d 65, 70 (2d Cir. 1999)).

“[U]nder the first prong of the selective enforcement analysis, a plaintiff must identify a similarly situated comparator and, second, he or she must show that, compared with others similarly situated, he or she was treated differently.” Bar-Levy, 2020 WL 814925, at *5. “Generally, to establish differential treatment, a plaintiff must demonstrate that the defendant had knowledge of violations committed by others, but declined to enforce them.” Glover v. City of New York, No. 15 Civ. 4899 (MKB), 2018 WL 4906253, at *14 (E.D.N.Y. Oct. 9, 2018); see Abel v. Morabito, No. 04 Civ. 7284 (PGG), 2009 WL 321007, at *4 (S.D.N.Y. Feb. 10, 2009) (noting that “[t]o establish the first element,” plaintiff must show that defendants “knew there were similarly situated individuals and ‘consciously applied a different standard’ ” (quoting LaTrieste Rest., 188 F.3d at 70)). To satisfy the second prong, “ ‘a plaintiff advancing a selective enforcement claim must demonstrate that a discriminatory purpose was a motivating factor in the government decision.’ ” Tower Props. LLC v. Vill. of Highland Falls, 14 Civ. 4502 (NSR), 2015 WL 4124499, at *11 (S.D.N.Y. July 7, 2015) (quoting Adler v. Kent Vill. Hous. Co., 123 F. Supp. 2d 91, 98 (E.D.N.Y. 2000)); see Anderson v. City of New York, 817 F. Supp. 2d 77, 94–95 (E.D.N.Y. 2011) (under this prong, “plaintiffs must prove that ‘the disparate treatment was caused by the impermissible motivation’ ”) (emphasis in original) (citation omitted).

Applying these standards here, the Court first finds that Plaintiffs have identified similarly situated comparators, namely, non-Asian individuals, both with and without signs, who attended the February 4, 2020 Town Hall and passed through the same security checkpoint as Plaintiffs did.¹⁶ Plaintiffs have not identified any such individuals by name, but under the circumstances, there is no reason why that should be required. Defendants do not appear to contest this point.

The issue of whether Asian and non-Asian attendees were subject to differential treatment, by contrast, is hotly disputed. Defendants argue that Plaintiffs “failed to show that Defendants’ actions were motivated by any intent to cause Plaintiffs to be treated differently than others similarly situated ․” (Mot. at 12). Plaintiffs contend that there exists a genuine issue of material fact as to whether Asian individuals attending the Town Hall were treated differently than non-Asian attendees, and whether that disparity in treatment was due to impermissible considerations of race, color, or national origin. (P. Opp. at 36–37).

In support of their argument, Defendants emphasize that the “no signs” instruction “was given to all persons seeking to gain access to the town hall meeting,” not just to Plaintiffs or other Asian American attendees. (Mot. at 10; see also D. Opp. at 8, 10). The deposition and video evidence supports that contention. (Marino Dep. 13:11–24; Lee Dep. 26:6–20, 27:14–16, 34:12–21; Lam Dep. 31:3–5; Weekes Decl. Ex. K 00:17–19, 00:25–26, 01:09–12, 01:59–2:00, 03:01–07, Ex. J 02:09–12, 02:10–21). Nonetheless, the fact that the ban on signs was announced to all attendees does not mean that it was applied in the same way to all attendees. And Plaintiffs contend that it was applied differentially to Asian and non-Asian attendees in several respects.

First, Plaintiffs contend that the video evidence shows that non-Asian attendees “were allowed to enter the Town Hall without being searched for a sign” while Plaintiffs “were selectively stopped, searched and prevented from entering with a sign.” (P. Opp. at 34–35). Defendants argue that the video evidence flatly contradicts Plaintiffs’ argument, and shows instead that those allowed into the School were not holding signs and that the two Plaintiffs shown with signs in the videos (Lam and Ni) were stopped and denied access only because they were carrying signs and refused “to adhere to the instructions of City personnel[.]” (D. Opp. at 10). Based on its review of the videos, and testimony about the videos, the Court agrees with Defendants’ characterization. (See Weekes Decl. Exs. J–K; Marino Dep. 39:18–20 (“Q: And the individuals that are nonAsian, do you see them carrying signs? A: They are not.”); Lam Dep. 121:6–10 (“Q: Ms. Lam, ․ [w]e just saw a series of individuals go into the town hall meeting. Did you see any of these individuals carrying signs? A: Not from that angle.”)). Plaintiffs’ sweeping characterizations of the videos are unsupported by any citation to a particular timeframe that purportedly shows a non-Asian attendee with a sign being allowed into the venue or an Asian attendee being stopped inappropriately.

Further, to the extent that Plaintiffs or other Asian Americans may have been disproportionately stopped and subjected to delays in entering the School, there was a non-discriminatory reason for that treatment. Plaintiffs were entering the School having come directly from the protest on the sidewalk, where they and other Asian American protesters were displaying signs. (Weekes Decl. Ex. I; D. 56.1 ¶¶ 10–12; P. 56.1 ¶ 35). The protesters carried their signs with them as they approached the School entrance. (D. 56.1 ¶¶ 10–12; P. 56.1 ¶ 35;; Lam Dep. 38:7–13, 40:9–12; Ni Dep. 17:1–9, 20:22–21:2, 21:7–14) Given the ban on signs, it is only natural that participants in the protest, including Plaintiffs, would have received greater attention and experienced more delays than those who were not coming from the protest. But that difference would not be due to their race; it would be due to their possession of signs.

However, Plaintiffs’ claims of differential treatment do not end there. Plaintiffs also contend that non-Asian attendees were allowed to enter the venue with signs, whereas they and other Asian attendees were not. Both Wong and Lam testified that they personally observed non-Asian attendees allowed into the meeting with signs. (Wong Dep. 23:20–24:4; Lam Dep. 21:12–15, 31:25–32:7). Were this testimony to be credited, it would support a finding that non-Asian attendees were treated differently from Asian attendees despite being “ ‘similarly situated in all material respects,’ ” Thomas, 2025 WL 583182, at *3. There is no dispute that Plaintiffs who were carrying signs were stopped and not allowed to enter until they surrendered their signs. Further, although Plaintiffs do not provide any specific testimony establishing that the safety personnel who allowed non-Asian attendees to enter with signs knew those individuals had signs, such knowledge is reasonably inferred from the circumstances. If Plaintiffs were able to see the signs being brought in by non-Asian attendees, then presumably the officers would have seen the same thing.

Defendants argue that the videos do not show any non-Asian attendee being allowed in with a sign, “and that is because that simply did not occur.” (D. Opp. at 10). As noted above, the Court agrees with Defendants’ characterization of the videos. But the videos do not capture the entirety of the relevant events; Wong, for instance, is not depicted in the videos at all. Consequently, the videos cannot and do not conclusively rebut Wong and Lam's testimony.

Nowhere in their briefs do Defendants directly address Wong and Lam's testimony or explain why their testimony is not sufficient to raise a triable issue of fact as to whether non-Asian attendees were allowed to enter the School with signs while Asian attendees were not. At most, Defendants suggest obliquely that Plaintiffs’ testimony is not “credible.” (See Mot. at 2, 10 (arguing “there is absolutely no credible evidence that Defendants’ actions were discriminatorily motivated towards Plaintiffs”)). But it is not the province of the Court on a motion for summary judgment to make credibility determinations. Savino, 983 F. Supp. 2d at 303 (“Defendants’ assertion in essence asks the Court to make a credibility determination, which is improper on a motion for summary judgment.”).

Further bolstering Plaintiffs’ claims of differential treatment is Lee and Liu's testimony that Lee and other Asian attendees were stopped and not allowed to enter the School even though they did not have signs. (Lee Dep. 27:1–5, 28:21–23, 36:3–11; Liu Dep. 18:10–13). This testimony, if credited, would also support a claim of differential treatment, as it is Defendants’ position that anyone not carrying a sign should have been allowed to enter. (Mot. at 10, 12). Here again, Defendants do not acknowledge this testimony, let alone explain why it does not give rise to a triable issue of material fact. Accordingly, Plaintiffs have put forth sufficient evidence that Asian and non-Asian attendees were treated differently despite being similarly situated, thereby satisfying the first prong of the selective enforcement analysis.

Turning to the second prong of the selective enforcement analysis, the Court also finds a triable issue of fact exists as to whether a discriminatory purpose was a motivating factor in the alleged selective treatment. There is certainly no direct evidence of racial animus or racially discriminatory remarks on the part of any of the personnel involved in enforcing the sign ban, and both Edwards and Marino testified that they enforced the ban without regard to the race of the attendees. (Marino Dep. 14:17–25, 15:11–16; Edwards Dep. 41:23–42:7) But if the ban was, in fact, enforced in a racially selective manner, as Plaintiffs’ testimony suggests, it is difficult to see how, under the circumstances of this case, the Court could rule as a matter of law that a discriminatory purpose did not play at least some role in that selective treatment. A protest led by Plaintiffs and other Asian Americans had taken place just minutes before, and the videos show Plaintiffs and others angrily confronting officers at the entrance to the School. (Weekes Decl. K 00:00–50). Even if the officers did not harbor any anti-Asian bias, if they knowingly treated similarly situated attendees differently on the basis of race, a reasonable juror could find that this constitutes purposeful discrimination within the meaning of the law. See, e.g., Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d 406, 419 (E.D.N.Y. 2009) (“[P]laintiffs need not allege racial animus to state a claim under the Equal Protection Clause. Rather, the plaintiffs must only allege that [they were] treated differently than those similarly situated, based on considerations of race.”).

To be sure, the evidence of knowing differential treatment is not strong. Wong and Lam's testimony about non-Asian attendees being allowed to enter with signs is vague. They provide no particulars about who was let in with signs, how many non-Asian attendees were let in with signs, what officers were responsible for letting them in, and how Wong and Lam know that the individuals had signs. Both Edwards and Marino vehemently deny this allegation (Edwards Dep. 41:23–42:7, 42:22–43:3; Marino Dep. 14:17–25, 15:11–16, 34:5–16), and, as noted, the video evidence, limited though it is, also does not support it.¹⁷ The testimony about Asian attendees without signs being denied entry is similarly vague, including with regard to how long they were made to wait. (Lee Dep. 28:21–23; Liu Dep. 18:10–13).

Moreover, any differential treatment that did occur while Plaintiffs were initially seeking entrance to the School was temporary. Ultimately, Plaintiffs were all allowed to enter the Town Hall and to display signs at the Town Hall if they wanted to.¹⁸ It is unclear whether the temporary period of differential treatment Plaintiffs allegedly endured rises to the level of a “deprivation of constitutional dimension.” Lynch v. City of New York, 952 F.3d 67, 77–78 (2d Cir. 2020) (noting that “there is ‘a de minimis level of imposition with which the Constitution is not concerned’ ” and holding that a protester who allegedly was detained for five hours and punitively denied food, drink, and access to a bathroom failed to state a Fourteenth Amendment claim (quoting Bell v. Wolfish, 441 U.S. 520, 539 n.21 (1979))); see also Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (“[E]ven in the field of constitutional torts de minimis non curat lex”).¹⁹ It is also unclear what, if any, damages Plaintiffs sustained from the alleged violation. But as Defendants do not advance any arguments for dismissal of Plaintiffs’ equal protection claim that are not based on denying the credibility of Plaintiffs’ accounts of differential treatment, the Court need not consider any other possible deficiencies in the claim at the summary judgment stage.

Viewing the evidence in the light most favorable to Plaintiffs and drawing all justifiable inferences in their favor, the Court concludes that Plaintiffs have proffered sufficient facts for a trier of fact to find a violation of Plaintiff's equal protection rights under a theory of selective enforcement.

3. Discriminatory Application of Facially Neutral Policy

The selective enforcement theory and the theory that a facially neutral law or policy has been applied in a discriminatory manner “obvious[ly] overlap.” Glover, 2018 WL 4906253, at *12. The chief difference concerns the need for the plaintiff to identify comparators, which is required under the former but not the latter. Id. “ ‘A plaintiff alleging an equal protection claim under a theory of discriminatory application of the law, or under a theory of discriminatory motivation underlying a facially neutral policy or statute, generally need not plead or show the disparate treatment of similarly situated individuals.” White v. City of New York, 206 F. Supp. 3d 920, 930 (S.D.N.Y. 2016) (quoting Pyke, 258 F.3d at 108–09). Instead, the plaintiff “must demonstrate that the application of the law was motivated by discrimination.” Savino, 983 F. Supp. 2d at 302. Once the plaintiff does so, the defendant “must show that the same result would have been reached even without the impermissible consideration.” Id. at 302–03.

As applied to the facts of this case, there appears to be no practical difference between the two theories. While Plaintiffs may not need to identify disparate treatment of similarly situated individuals to show the sign ban was applied in a discriminatory manner, their argument under this theory, as under their selective enforcement theory, depends entirely on their evidence of such disparate treatment. Although they present discriminatory application as an “alternative” theory, Plaintiffs proffer no evidence or argument as to why this theory should be sustained if the selective enforcement theory is not. (See P. Opp. at 34–37). Nor do Defendants present any reason for distinguishing between the two theories.

For the reasons set forth above, the Court has already determined that a triable issue exists as to Plaintiffs’ claim that the sign ban was selectively enforced as to them and that a discriminatory purpose was a motivating factor in that selective treatment. The same facts supporting the selective enforcement theory, if proven at trial, would also show that the sign ban was applied in a discriminatory manner. See Savino, 983 F. Supp. 2d at 305 (noting that the analysis concerning whether defendants enforced the law based on an impermissible consideration is “identical” to the analysis of whether defendants’ application of the law was motivated by a discriminatory purpose). Accordingly, the Court concludes that Plaintiffs have also raised a triable issue of fact as to their discriminatory application theory.

In sum, therefore, the undersigned respectfully recommends that Defendants’ motion for summary judgment as to Plaintiffs’ equal protection claim under the theories of selective enforcement and discriminatory application of the sign ban be denied.

C. Plaintiffs’ Fourth Amendment Claim

Defendants also move for summary judgment on Plaintiffs’ Fourth Amendment unreasonable search and seizure claim. (Mot. at 14–15). Plaintiffs’ Opposition fails to defend this cause of action. The sole mention of Plaintiffs’ Fourth Amendment claim in their Opposition is under “Plaintiffs’ Legal Claims,” where Plaintiffs copy-and-paste the FAC's allegations that “Defendants are liable for unreasonable searches and seizures of Asian Americans, including Plaintiffs,” and for “violating Plaintiff Siu-Lin Linda Lam's right under the Fourth Amendment ․ to be free from unreasonable searches and seizures.” (P. Opp. at 21; see FAC ¶¶ 125–26). Plaintiffs make no attempt to address Defendants’ motion for summary judgment on this cause of action in their “Argument” section and provide no legal support for their Fourth Amendment claim anywhere within the brief. The Court therefore deems Plaintiffs’ Fourth Amendment claim to be abandoned.

“ ‘[I]n the case of a counseled party, a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned.’ ” Lynn v. Paramount Glob., No. 24 Civ. 7219 (NRB), 2025 WL 1920026, at *16 (S.D.N.Y. July 11, 2025) (quoting Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014)). The Second Circuit has noted that “[g]enerally, but perhaps not always, a partial response reflects a decision by a party's attorney to pursue some claims or defenses and to abandon others.” Jackson, 766 F.3d at 196. “And insofar as summary judgment ‘is known as a highly useful method of narrowing the issues for trial,’ it follows that ‘preparation of a response to a motion for summary judgment is a particularly appropriate time for a non-movant party to decide whether to pursue or abandon some claims or defenses.’ ” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016) (quoting Jackson, 766 F.3d at 196). “Accordingly, where, on a motion for summary judgment, a counseled party responds to some claims but not to others, ‘an inference may be fairly drawn from the papers and circumstances viewed as a whole’ that the non-moving party intends to abandon the claims that have been challenged but that it has not defended.” Ruradan Corp. v. City of New York, No. 22 Civ. 3074 (LJL), 2024 WL 1555230, at *5 (S.D.N.Y. Apr. 10, 2024) (collecting cases) (quoting Jackson, 766 F.3d at 196).

Plaintiffs “failed to respond to the substantive arguments regarding [dismissal of their Fourth Amendment claim] that were presented by [Defendants]” and “failed to marshal evidence to support” the claim. DAOL Rexmark Union Station LLC v. Union Station Sole Member, LLC, 772 F. Supp. 3d 373, 415 (S.D.N.Y. 2025). “In fact, the argument section of the brief specifically enumerates [Plaintiffs’] claims and argues [ ] why each should survive summary judgment, but the brief is bereft of any mention of the purported” Fourth Amendment violation except for the copy-and-paste from Plaintiffs’ FAC in the “Legal Claims” section. Kovaco, 834 F.3d at 143–44 (emphasis in original). Plaintiffs fail to provide any argument as to “why these claims should survive summary judgment” or to address any of Defendants’ arguments. Id. at 144. “That Plaintiff[s] pleaded [their Fourth Amendment claim] does not relieve [them] from the effect of [their] failure to defend that claim in response to the [Defendants’] motion for summary judgment.” Ruradan Corp., 2024 WL 1555230, at *5 (citing Kovac, 834 F.3d at 143). “It is at the time of the motion for summary judgment that a party can decide which claim to pursue and which not.” Id. (citing Jackson, 766 F.3d at 196). Thus, Plaintiffs have abandoned their Fourth Amendment claim.

Even so, “when a party, whether pro se or counseled, fails to respond to an opponent's motion for summary judgment, a district court may not enter a default judgment.” Jackson, 766 F.3d at 197. “Rather, it must examine the movant's statement of undisputed facts and the proferred record support and determine whether the movant is entitled to summary judgment.” Id. Fed. R. Civ. P. 56 “ ‘does not allow district courts to automatically grant summary judgment on a claim simply because the summary judgment motion, or relevant part, is unopposed.’ ” Eloise Holdings, LLC v. Mt. Hawley Ins. Co., No. 23 Civ. 7513 (GHW), 2025 WL 764374, at *4 (S.D.N.Y. Mar. 11, 2025) (quoting Jackson, 766 F.3d at 194). “Before granting an unopposed summary judgment motion, ‘the district court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production even if the statement is unopposed.’ ” Id. (quoting Jackson, 766 F.3d at 194). “ ‘And, of course, the court must determine whether the legal theory of the motion is sound.’ ” Id. (quoting Jackson, 766 F.3d at 194). “Rule 56 ‘requires that a grant or denial of summary judgment is accompanied by an explanation.’ ” Id. (quoting Jackson, 766 F.3d at 196).

As is required, the Court has reviewed the record and determined that even when viewed in the light most favorable to Plaintiffs, Defendants have met their burden and that there are no issues of material fact as to Plaintiffs’ Fourth Amendment claim. Defendants are entitled to summary judgment on Plaintiffs’ Fourth Amendment claim.

“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ ” City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 419 (2015) (quoting U.S. Const. amend. IV). “ ‘A search occurs when the Government acquires information by either ‘physically intruding on persons, houses, papers, or effects,’ or otherwise invading an area in which the individual has a reasonable expectation of privacy.’ ” Gem Fin. Serv., Inc. v. City of New York, 298 F. Supp. 3d 464, 479 (E.D.N.Y. 2018) (quoting United States v. Ganias, 755 F.3d 125, 133 (2d Cir. 2014) (quoting Florida v. Jardines, 569 U.S. 1, 5 (2013)). “ ‘[T]he ultimate measure of the constitutionality of a governmental search is “reasonableness.’ ”” Cassidy v. Chertoff, 471 F.3d 67, 74 (2d Cir. 2006) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995)). “Courts judge the reasonableness of a search ‘by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.’ ” Id. (quoting Vernonia Sch. Dist. 47J, 515 U.S. at 652–53).

A seizure of a person within the meaning of the Fourth Amendment occurs “when an ‘officer, by means of physical force or [a] show of authority, ․ in some way restrain[s] the liberty of a citizen.’ ” Edrei v. City of New York, 254 F. Supp. 3d 565, 573 (S.D.N.Y. 2017) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)); see also Torres v. Madrid, 592 U.S. 306, 317 (2021) (“A seizure requires the use of force with intent to restrain.” (emphasis in original)). “[U]nder Fourth Amendment seizure law, ‘a person has been “seized” ․ if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” United States v. Weaver, 9 F.4th 129, 142 (2d Cir. 2021) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). As with a search, the reasonableness of a seizure is determined by “balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372, 383 (2007) (citation omitted).

Only Plaintiff Lam is specifically named in the FAC as having been subject to an unreasonable search and seizure. (See FAC ¶ 126). In her deposition, when asked if she had been searched, Lam responded that when she was waiting in line she “saw people being searched” when they were “asked to open their coats to show that there's no sign—that they were not hiding any signs.” (Lam Dep. 21:16–21). When it came her turn, Lam was not individually asked to open her coat. (Id. 21:23–25). Nevertheless, based on her observations regarding the people in front of her, Lam “felt that [she] had to open [her] coat to show that [she] did not have anything.” (Id. 22:1–5). Lam did open her coat, showing the officers that she no longer had a sign, and was let into the School. (Id. 44:15–45:1).

Lam does not claim there was any physical intrusion on her person during this encounter. Even if she opened her coat because the officers were asking others in line to do so, the mere “asking of a question does not constitute a search” for Fourth Amendment purposes. United States v. Hunter, No. 07-CR-265, 2008 WL 2074076, at *2–3 (W.D.N.Y. May 14, 2008) (officer's asking individual temporarily detained during execution of a search warrant if he “had anything on him” did “not constitute a Fourth Amendment event”); see Gilmore v. Ashcroft, No. C02-2444 SI, 2004 WL 603530, at *4 (N.D. Cal. Mar. 23, 2004) (holding that request made at airport for plaintiff to show identification in order to board plane, “where plaintiff is free to refuse, is not a search and so does not implicate the Fourth Amendment”). And even if the officers’ viewing of Lam's person with her coat open could be deemed a “search,” Lam consented to this search by voluntarily agreeing to open her coat. If she did not wish to accede to the officers’ request, she was free to decline and not seek entry into the School. See Linehan v. Keefe, 99 F.3d 401, at *2 (2d Cir. 1995) (summary order) (where officers refused to allow plaintiffs to enter courtroom unless they consented to searches using hand-held metal detectors, and plaintiffs consented, the search “did not run afoul of the Fourth Amendment” as “[t]here is no allegation that the [plaintiffs] could not leave the courthouse until they submitted to the search”).²⁰ Thus, Lam was not subject to an unreasonable search under the Fourth Amendment.

There is also evidence in the record, as described above, that during an earlier encounter Lam, while still holding a sign, tried to enter the School by going behind an officer and Edwards, and that Marino “grabbed” and “pushed” her to “stop[ ] her from getting inside the building.” (Lam Dep. 31:9–16, 32:8–25; Weekes Decl. Ex. K. 02:13–02:20). Officers then joined Marino to help prevent Lam's unauthorized entrance and Lam “froze[ ]” in the doorway. (Lam Dep. 32:18–25; Weekes Decl. Ex. K 02:19–03:35). The officers asked her to step out of the doorway multiple times, but she resisted, resulting in an officer using his arm to “nudge [her] back” and “push” her out. (Lam Dep. 33:23–34:2; Weekes Decl. Ex. K 02:19–03:35). Defendants argue that, to the extent Lam asserts a Fourth Amendment claim based on this conduct, there was no unlawful seizure because there is no indication Lam was “not free to leave[.]” (Mot. at 15).

The Court agrees with Defendants that to the extent Lam was blocked from entering the venue, and to the extent she was told to move away from the doorway, these actions do not amount to a Fourth Amendment “seizure.” See, e.g., Salmon v. Blesser, 802 F.3d 249, 253 & n.4 (2d Cir. 2015) (order by police officer to leave a public area, even if coupled with “guiding force short of actual restraint,” is not, without more, a Fourth Amendment seizure “as long as the person is otherwise free to go where he wishes”); Maxwell v. City of New York, 102 F.3d 664, 668 n.2 (2d Cir. 1996) (“[A] ‘seizure’ requires that an officer restrict the liberty of an individual such that a reasonable person would not believe that he was free to leave.”); Louis v. Metro. Transit Auth., 145 F. Supp. 3d 215, 228 (E.D.N.Y. 2015) (“Although Plaintiff was ejected from the bus, she was ‘free to go anywhere else,’ and Defendants did not restrain her. Therefore, there was no seizure.” (quoting Sheppard v. Beerman, 18 F.3d 147, 153 (2d Cir. 1994))); see also Williams v. Anchorage Sch. Dist., No. 3:23-cv-202-JMK, 2024 WL 2801914, at *4 (D. Alaska May 31, 2024) (“[T]he initial refusal to allow Plaintiff access to the meeting for failing to comply with the mask requirement is not a basis for a false arrest claim. At most his freedom to do what he wanted—assumedly enter the meeting and address the school board—was restrained, but that is not a seizure.”).

As for the officers and Marino's actions in grabbing, nudging, and pushing Lam to prevent her from entering the School, Defendants’ “free to leave” argument fits less snugly. See Salmon, 802 F.3d at 254 (officer's intentional “restraining and controlling [plaintiff's] movements ․ transform[ed] their encounter, even if only briefly, into a detention, which qualifies as a seizure of [plaintiff's] person”). But even assuming, arguendo, that Lam was seized, whether the “seizure [was] reasonable is of course another question.” Id. at 255. The record, including the video evidence of the encounter, answers that question in the affirmative. The encounter occurred after Lam was first denied entry while carrying a sign and then ignored directions from City personnel by attempting to go around them to enter the School with her sign, in violation of the ban the officers were tasked with enforcing. The officers’ modest use of force to prevent Lam from impermissibly entering the venue in violation of the no-signs policy was plainly reasonable. See, e.g., Williams, 2024 WL 2801914, at *5 (finding no Fourth Amendment claim where plaintiff, who was initially denied entry into school board meeting for failing to comply with mask requirement, was detained after he “ignored the officer and attempted to sneak into the meeting” without a mask); Youkhanna v. City of Sterling Heights, 332 F. Supp. 3d 1058, 1070 (E.D. Mich. 2018) (“As an initial matter, the February 21, 2017 meeting was a limited public forum and Defendant Taylor was allowed to restrict non-germane speech and remove individuals who were being disruptive without violating the Constitution.”), aff'd, 934 F.3d 508 (6th Cir. 2019).²¹

Based on a review of the record and the arguments provided, Lam was not subject to an unreasonable search or seizure in violation of the Fourth Amendment. Plaintiffs have abandoned their claim under the Fourth Amendment and Defendants have shown their entitlement to summary judgment. Thus, the undersigned respectfully recommends that Defendants be granted summary judgment as to Plaintiffs’ Fourth Amendment claim.

D. Municipal Liability Under § 1983

Plaintiffs bring their federal claims against all Defendants, including the municipal Defendants, the DOE, and the City. (See FAC ¶¶ 98, 107, 110–12, 114–16, 125–26). As the Court recommends the dismissal of all federal claims with the exception of Plaintiffs’ equal protection cause of action, the question remains whether the municipal Defendants can be held liable for an equal protection violation under § 1983.

Defendants barely address the issue of Monell liability in their Memorandum of Law in Support of their Motion, merely stating that “Plaintiffs must show that their alleged injuries were caused by an official policy, practice, or custom of the City” under Monell and that there is no respondeat superior liability under § 1983. (Mot. at 16–17). Skipping any analysis or argument, Defendants jump to their conclusion that the City and DOE are thus entitled to summary judgment on all federal constitutional claims. (Id.). In their Opposition, Defendants provide a bit more, arguing that “[i]solated acts by non-policy making municipal employees,” as they claim the sign ban and its enforcement were, “are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability.” (D. Opp. at 15 (citation omitted)). Defendants further argue that Plaintiffs “fail to show that the action that took place ․ was done by an employee who had final policy making authority, which is required ․ to subject the government to 1983 liability.” (Id.). For their part, Plaintiffs concede that “the occurrence at issue happened one time,” but state that it was indeed “ordered by a top decision making official,” which could allow for liability under § 1983. (P. Opp. at 40).

“Pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), and its progeny, ‘a municipality can be held liable under Section 1983 if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality.’ ” Barzilay v. City of New York, 610 F. Supp. 3d 544, 617 (S.D.N.Y. 2022) (quoting Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012)). “The elements of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto v. New York City Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020) (citation omitted). “ ‘Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.’ ” Friend v. Gasparino, 61 F.4th 77, 93 (2d Cir. 2023) (quoting Connick v. Thompson, 563 U.S. 51, 61 (2011)). “Monell expressly prohibits respondeat superior liability for municipalities[.].” Agosto, 982 F.3d at 97–98. Municipal liability pursuant to § 1983 will attach only “if the violation resulted from a ‘government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.’ ” Barzilay, 610 F. Supp. 3d at 617 (quoting Monell, 436 U.S. at 694).

“ ‘When an official has final authority over significant matters involving the exercise of discretion, the choices he makes represent government policy.’ ” Id. (quoting Nagle, 663 F.3d at 116) (cleaned up). Thus, “a ‘single unlawful discharge, if ordered by a person whose edicts or acts may fairly be said to represent official policy, can, by itself, support a claim against a municipality.’ ” Littlejohn v. City of New York, 795 F.3d 297, 315 (2d Cir. 2015) (quoting Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 128 (2d Cir. 2004)); see Agosto, 982 F.3d at 98 (“The Supreme Court has said that a municipality may be liable for the acts of a single official—but only if that official is someone ‘whose edicts or acts may fairly be said to represent official policy’ for the entire municipality.” (quoting Monell, 436 U.S. at 694)). “It is not enough that an official had discretion to make a decision that was unreviewable.” Agosto, 982 F.3d at 98. “Rather, the official must have been sufficiently ‘high up in the municipal hierarchy[ ]’ that he was ‘responsible under state law for making policy in that area of the municipality's business.’ ” Id. (first quoting Walker v. City of New York, 974 F.2d 293, 297 (2d Cir. 1992); and then quoting Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir. 2000)). “ ‘Whether the official in question possessed final policymaking authority is a legal question, which is to be answered on the basis of state law.’ ” Id. (quoting Jeffes, 208 F.3d at 57).

No evidence has been provided, nor argument made, that any official with the requisite policy or decision-making authority authorized the allegedly discriminatory actions giving rise to Plaintiffs’ equal protection claims, the only constitutional violations remaining in this action. Indeed, Plaintiffs acknowledge that it is “unlikely that they have stated a Monell claim[.]” (P. Opp. at 37). For this reason, Plaintiffs urge the Court to not dismiss their claims under the New York Constitution, arguing that “the value of the State Constitutional claims is that they make it easier to keep the City and its Department of Education in this case” because of the state law doctrine of respondeat superior. (Id. at 40). Nevertheless, Plaintiffs at least nod to the possibility of a Monell claim, on the basis that “a top official at the Department of Education ordered his subordinates to violate Plaintiffs’ right.” (Id. at 37).

Presuming the “top official” to whom Plaintiffs refer is Mark Rampersant, who issued the no-signs instruction, the Court is unclear as to whether Rampersant was “sufficiently high up in the municipal hierarchy,” Agosto, 982 F.3d at 98 (cleaned up), as to permit the attachment of Monell liability. The record is barren of any evidence of Rampersant's authority and responsibilities as a citywide chief of safety officer for the DOE, and the parties have provided no briefing on the question. The Court need not hazard a guess at the answer, however, for even if Rampersant did have sufficient policymaking responsibility, Plaintiffs would not have a Monell claim.

That is because, as described above, the Court recommends dismissal of Plaintiffs’ First Amendment and Equal Protection Clause claims to the extent they are directed at the imposition of the sign ban itself. All that remains of Plaintiffs’ federal constitutional claims is the claim that the sign ban was impermissibly applied and enforced during the Town Hall, in violation of Plaintiffs’ equal protection rights. Nothing in the record suggests that Rampersant was involved in the application or enforcement of the sign ban, or that the officers present at the Town Hall were acting pursuant to a City or DOE policy or custom or had previously engaged in discriminatory acts of which supervisory authorities were aware. “Municipalities like the City cannot be held liable under § 1983 merely because they employ someone who violated the plaintiff's constitutional rights.” Richards v. City of New York, No. 20 Civ. 3348 (RA) (KNF), 2021 WL 3668088, at *2 (S.D.N.Y. Aug. 18, 2021). Accordingly, and as Plaintiffs make no serious attempt to support their Monell claim against the municipal Defendants, the Court finds that the DOE and City may not be held liable for the asserted equal protection violations under § 1983.

E. State Constitutional Claims

The Court next addresses Plaintiffs’ causes of action brought under the parallel free speech, equal protection, and unlawful search and seizure provisions of the New York State Constitution, see N.Y. Const. art. I, §§ 8, 11–12, as well as their claim against the municipal Defendants pursuant to the theory of respondeat superior liability. Defendants argue that they are entitled to summary judgment on all state law claims because the federal counterparts of the state claims fail. (Mot. at 12–17; D. Opp. at 14–15).

“Courts in this Circuit have ‘uniformly held that no private right of action exists for violations of the New York State Constitution where the plaintiff has an alternative remedy under § 1983 for violations of parallel provisions of the U.S. Constitution.’ ” Buari v. City of New York, 530 F. Supp. 3d 356, 408 (S.D.N.Y. 2021) (quoting Alwan v. City of New York, 311 F. Supp. 3d 570, 586 (E.D.N.Y. 2018) (collecting cases)); see Buchanan v. City of New York, 556 F. Supp. 3d 346, 365 (S.D.N.Y. 2021) (“ ‘[I]t is a common view among District Courts in this Circuit that there is no right of action under the New York State Constitution for claims that can be brought under § 1983.’ ” (quoting Raymond v. City of New York, No. 15 Civ. 6885 (LTS) (HBP), 2017 WL 892350, at *8 (S.D.N.Y. Mar. 6, 2017))). “These courts ‘rely on the premise that § 1983 provides an “adequate” alternative remedy for violations of the New York State Constitution.’ ” Buari, 530 F. Supp. 3d at 409 (quoting Alwan, 311 F. Supp. 3d at 586). “Thus, ‘where a complaint alleges no theories of liability that are cognizable exclusively under the New York State Constitution, any claims brought under the state constitution are ordinarily dismissed.’ ” Id. (quoting Talarico v. Port Auth. of N.Y. & N.J., 367 F. Supp. 3d 161, 171–72 (S.D.N.Y. 2019) (collecting cases)); see Barzilay, 610 F. Supp. 3d at 619 (“Indeed, where a § 1983 claim is brought for a parallel constitutional right, a court will properly dismiss state constitutional claims.”).

However, because “Section 1983 does not recognize respondeat superior liability,” Walston v. City of New York, No. 22 Civ. 10002 (LAK) (JW), 2024 WL 1376905, at *18 (S.D.N.Y. Mar. 7, 2024) (citation omitted), R&R adopted, 2024 WL 1374837 (S.D.N.Y. Apr. 1, 2024), “courts in this Circuit have recognized that § 1983 does not provide an adequate alternative remedy for [a] [p]laintiff's state-constitutional claims, to the extent they are asserted against the City under a theory of respondeat superior.” Barzilay, 610 F. Supp. 3d at 620 (cleaned up). Thus, the Court must address the New York State constitutional claims on the merits. Harry v. City of New York, No. 20 Civ. 5951 (GBD), 2022 WL 17718339, at *5 (S.D.N.Y. Dec. 15, 2022) (“Plaintiff asserts state constitutional claims against the City under a theory of respondeat superior. Because Section 1983 does not authorize respondeat-superior liability, it cannot provide an adequate alternative remedy for Plaintiff's State constitutional claims to the extent they are asserted against the City. These claims must therefore be analyzed on the merits.”) (citations omitted), aff'd, No. 23-69-CV, 2024 WL 260968 (2d Cir. Jan. 24, 2024).

“That does not mean, however, that all of Plaintiff's claims against the City under the New York State Constitution can proceed to trial.” Alwan, 311 F. Supp. 3d at 587–88. As explained below, because the Court has found that Plaintiffs have failed to allege violations of the First and Fourth Amendments, and because the analysis for both are coextensive with the New York State Constitution's parallel provisions, Plaintiffs do not have a viable claim for free speech and unreasonable search and seizure violations under state law. Only Plaintiffs’ state equal protection claim against the City and DOE can stand.

1. Freedom of Speech (N.Y. Const. art. 1, § 8)

Defendants argue that because Plaintiffs’ First Amendment claim fails, so must Plaintiffs’ claim for violation of their free speech rights under the New York State Constitution, as both are subject to the same analysis. (Mot. at 14). The Court agrees.

“ ‘[F]ree speech claims under Article 1, Section 8 of the New York State Constitution are subject to the same analysis as free speech claims under the First Amendment.’ ” Buchanan, 556 F. Supp. 3d at 365 (quoting Carter v. Inc. Vill. of Ocean Beach, 693 F. Supp. 2d 203, 212 (E.D.N.Y. 2010)), aff'd, 415 F. App'x 290 (2d Cir. 2011); see also Eric Adams 2025 v. N.Y.C. Campaign Fin. Bd., No. 25 Civ. 3380 (NGG) (LKE), 2025 WL 1920885, at *14 & n.24 (E.D.N.Y. July 11, 2025) (limiting free speech analysis to the First Amendment rather than independently discussing alleged violations of the First Amendment and N.Y. Const. art. I, § 8 for the reason stated above); Martinez v. Sanders, 307 F. App'x 467, 468 n.2 (2d Cir. 2008) (noting that Plaintiff's free speech claims brought under Article 1 § 8 of the New York State Constitution “are subject to the same standards as the First Amendment claims”).

Therefore, for the same reasons that Plaintiffs’ First Amendment claim fails, so too does Plaintiffs’ free speech claim under the New York State Constitution. Accordingly, the Court respectfully recommends that Defendants be granted summary judgment with regard to Plaintiffs’ N.Y. Const. art. 1, § 8 claim.

2. Equal Protection (N.Y. Const. art. 1, § 11)

Defendants similarly contend that they are entitled to summary judgment on Plaintiffs’ New York Constitution equal protection claim. As with free speech protections, “New York State Courts apply the same analysis for equal protection claims under the Fourteenth Amendment of the United States Constitution and Article 1 § 11 of the New York State Constitution.” Dean v. Town of Hempstead, No. 14 Civ. 4961 (MKB), 2024 WL 3849688, at *43 (E.D.N.Y. Aug. 16, 2024); see Cnty. of Rockland v. Triborough Bridge & Tunnel Auth., No. 24 Civ. 2285 (CS), 2025 WL 1927493, at *9 (S.D.N.Y. July 14, 2025) (“The Fourteenth Amendment to the U.S. Constitution and Article I, Section 11 of the New York Constitution provide that no person shall be denied ‘the equal protection of the laws.’ The analysis under both provisions is the same.” (citing Town of Southold v. Town of East Hampton, 477 F.3d 38, 52 n.3 (2d Cir. 2007) (noting that “the Equal Protection Clauses of the federal and New York Constitutions are coextensive”)); see also G.D.S. ex rel. Slade v. Northport-East Northport Union Free Sch. Dist., 915 F. Supp. 2d 268, 280 (E.D.N.Y. 2012) (dismissing state equal protection claim because it was already asserted under § 1983).

However, because Plaintiffs’ equal protection claim pursuant to the Fourteenth Amendment has withstood summary judgment, so too does Plaintiffs’ equal protection claim under the New York Constitution against the City and DOE to the extent it is brought under a theory of respondeat superior. Under New York law, “where the acts of ‘employees’ are concerned, an employer can be held vicariously liable under principles of respondeat superior for acts committed within the scope of the employee's employment[.]” Paul v. City of New York, No. 16 Civ. 1952 (VSB), 2017 WL 4271648, at *7 (S.D.N.Y. Sept. 25, 2017) (cleaned up). Defendants do not dispute that the officers enforcing the sign ban at the February 4, 2020 Town Hall were employees of either the DOE or the City and were acting within the scope of their employment. See Herrera v. Shea, No. 20 Civ. 3665 (PKC) (VMS), 2020 WL 7711856, at *10 (E.D.N.Y. Dec. 29, 2020) (upholding respondeat superior claim based on alleged violations of New York Constitution where plaintiff sufficiently alleged that “the NYPD and HRA officers involved in the alleged incidents on December 19, 2019, were employees of the City and acting within the scope of their employment”).

Moreover, while Plaintiffs’ evidence does not specify whether Defendants Marino or Dym were involved in the alleged equal protection violations, this is of no moment for Plaintiffs’ respondeat superior theory of liability. See Tardif v. City of New York, 344 F. Supp. 3d 579, 592 (S.D.N.Y. 2018) (“[T]here is no requirement that respondeat superior liability be predicated on the conduct of an individual who is named as a defendant in the suit.”).

Accordingly, the Court recommends that Defendants’ motion for summary judgment dismissing Plaintiffs’ equal protection claim under the New York Constitution be denied with respect to the DOE and the City, to the same extent that Plaintiffs’ federal equal protection claim survives summary judgment. See Alwan, 311 F. Supp. 3d at 588 (denying summary judgment on state equal-protection and search-and-seizure claims because “Defendants have not shown that Plaintiff has an adequate alternative remedy for these claims, to the extent these claims are asserted against the City.”).

3. Unlawful Stops and Searches (N.Y. Const. art. 1, § 12)

As with the Fourth Amendment claim, Plaintiffs offer nothing by way of argument or evidence to support Plaintiff Lam's claim that she was deprived of her right to be free from unreasonable searches and seizures under the New York Constitution. The Court thus recommends dismissal for the same reasons set forth in its merits-based analysis of Plaintiffs’ Fourth Amendment claim.

“Like the U.S. Constitution, the New York State Constitution prohibits unreasonable searches and seizures[.]” Alwan, 311 F. Supp. 3d at 585 (citing N.Y. Const. Art. 1, § 12). New York State's constitutional protections against unlawful search and seizures are coextensive with the Fourth Amendment standard. See, e.g., Toadflax Nursery, LLC v. Cnty. of Washington, No. 20 Civ. 1620 (GTS) (CFH), 2024 WL 2722552, at *5 n.5 (N.D.N.Y. May 28, 2024) (“The language of the Fourth Amendment of the United States Constitution and of Article I, Section 12 of the New York State Constitution are identical and, as such, alleged violations of either are subject to the same analysis. Therefore, although defendants do not explicitly mention the New York State search and seizure claim in their arguments, it must be dismissed for the same reasons as the Fourth Amendment claim.”); see also Mittelman v. Cnty. of Rockland, No. 07 Civ. 6382 (CM) (LMS), 2013 WL 1248623, at *23 (S.D.N.Y. Mar. 26, 2013) (“The language of the Fourth Amendment of the United States constitution is identical to that of the Article I, Section 12 of the New York State Constitution. Accordingly, [plaintiff's] claims regarding possible violation of the New York State Constitution are subject to the same analysis and should be dismissed together with the federal claims for the reasons set forth above.”).

Accordingly, for the reasons stated above, Plaintiffs may not maintain a search and seizure claim pursuant to the theory of respondeat superior against the City and DOE. See Mittelman, 2013 WL 1248623 at *30 (granting summary judgment dismissing claims against county defendant for violation of search-and-seizure provision of New York Constitution where federal constitutional claims under Fourth Amendment were dismissed). The Court thus recommends dismissal of this claim.

F. Assault & Battery

As with the Fourth Amendment claim, only Plaintiff Lam brings an assault and battery claim as she is the only Plaintiff who alleges that force was used against her. (See FAC ¶¶ 130–32). Defendants seek summary judgment on this claim on the ground that it must be evaluated under the same standard applicable to claims for excessive force under the Fourth Amendment, and the alleged use of force on Lam “does not constitute the type of force sufficient to establish an assault and battery claim.” (Mot. at 16; see D. Opp. at 14).²²

Plaintiffs’ Opposition does not address, let alone attempt to refute, Defendants’ argument. As with Lam's Fourth Amendment claim, Plaintiffs’ counsel does nothing more than copy-and-paste the relevant paragraphs from the FAC into the “Legal Claims” section of the Opposition. (See P. Opp. at 21–22; FAC ¶¶ 131–32). Based on the same principles and authorities discussed above, Plaintiffs’ failure to respond evinces an intent by Plaintiffs to abandon the assault and battery claim. (See supra at 68–70). Further, Plaintiffs’ Opposition does not articulate a basis for a Fourth Amendment excessive force claim based on the alleged assault and battery, and therefore has not provided even an analogous argument in support of the assault and battery claim. Cf. Moore v. Keller, 498 F. Supp. 3d 335, 347 (N.D.N.Y. 2020) (declining to conclude that plaintiffs had abandoned certain state law claims because “th[o]se claims [were] so closely related to their § 1983 analogues that courts and parties typically analyze them together”).

Thus, as with their Fourth Amendment claim, the Court deems Lam to have abandoned her claim for assault and battery. Still, the Court has independently reviewed the record and Defendants’ arguments for dismissal, as required, see Jackson, 766 F.3d at 196–97, and concludes on the merits that summary judgment is warranted on Plaintiff Lam's claim for assault and battery.

“The elements of New York assault and battery and Section 1983 excessive force claims are ‘substantially identical.’ ” Tardif v. City of New York, 991 F.3d 394, 410 (2d Cir. 2021) (quoting Posr v. Doherty, 944 F.2d 91, 94–95 (2d Cir. 1991)). “ ‘Under New York law, civil assault is an intentional placing of another person in fear of imminent harmful or offensive contact.’ ” Clinton v. City of New York, No. 24 Civ. 3408 (GHW), 2025 WL 1368863, at *11 (S.D.N.Y. May 9, 2025) (quoting Tardif, 991 F.3d at 410)) (cleaned up). “ ‘Civil battery is an intentional wrongful physical contact with another person without consent.’ ” Id. (quoting Tardif, 991 F.3d at 410) (cleaned up). However, to establish a claim for assault and battery in the law enforcement context, “a plaintiff must also demonstrate that the defendant officer's conduct ‘was not reasonable within the meaning of the New York statute concerning justification of law enforcement's use of force in the course of their duties.’ ” Tardif, 991 F.3d at 410 (quoting Nimley v. City of New York, 414 F.3d 381, 391 (2d Cir. 2005)).

“New York Penal Law § 35.05(1) states, in relevant part, that ‘use of physical force ․ is justifiable and not criminal when ․ [it] is performed by a public servant in the reasonable exercise of his official powers, duties or functions.’ ” Id. at 411 (quoting N.Y. Penal Law § 35.05(1)). Further, Penal Law § 35.30 provides that an officer may use physical force “ ‘when and to the extent [the officer] reasonably believes such to be necessary[.]’ ” Id. at 410 (quoting N.Y. Penal Law § 35.30(1)). This standard is the “functional equivalent” of the “objective reasonableness” standard used in assessing claims of excessive force under the Fourth Amendment. Id. at 410–11 (citation omitted). New York courts also “have dismissed assault and battery claims in non-arrest situations where it was clear from the record that the use of force was justified and reasonable.” Id. at 411; see also id. (“ ‘[B]attery committed in the performance of a public duty’ requires ‘excessive force[.]’ ” (quoting Disla v. City of New York, 117 A.D.3d 617, 986 N.Y.S.2d 463, 465 (1st Dep't 2014))).

Thus, assault and battery claims brought under New York law are “ ‘judged under the Fourth Amendment's “objective reasonableness” standard.’ ” Jackson v. City of New York, 939 F. Supp. 2d 219, 231, 233 (E.D.N.Y. 2013) (“Excessive force claims brought under Section 1983 are ‘judged under the Fourth Amendment's “objective reasonableness” standard.’ ‘The same is true for claims of ․ battery brought under New York law.’ ․ As is true for state law claims of battery, claims of assault ‘are judged under the Fourth Amendment's objective reasonableness standard.’ ” (first quoting Terranova v. New York, 676 F.3d 305, 308 (2d Cir. 2012); and then Gilliard v. City of New York, No. 10 Civ. 5187 (NGG) (CLP), 2013 WL 521529, at *10 (E.D.N.Y. Feb. 11, 2013)); see Esperanza v. City of New York, 325 F. Supp. 3d 288, 303 (E.D.N.Y. 2018) (noting that assault and battery claims are analyzed under the same “objective reasonableness” standard as excessive force claims under the Fourth Amendment). The objective reasonableness standard “calls for ‘a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.’ ” Antic v. City of New York, 273 F. Supp. 3d 445, 458 (S.D.N.Y. 2017) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)), aff'd, 740 F. App'x 203 (2d Cir. 2018).

Lam testified, and video shows, that when she attempted to enter the Town Hall for a second time with her sign by going around Officer Dym and Edwards, Defendant Marino followed after her, grabbed her arm to stop her from entering, and placed himself between Lam and the entrance. (Lam Dep. 111:9–21; Marino Dep. 17:11–19:14; Weekes Decl. Ex. K 02:13–26). Lam states that she was “grabbed and pushed by AP Marino” on her “left shoulder and left arm” when she “tried to get into the building[.]” (Lam Dep. 35:8–13, 110:21–22, 111:24–112:2). Lam describes that after she “froze[ ]” in the doorway and refused to leave, “an officer standing at [her] back ․ use[d] his arm to nudge [her] back and push [her] ․ out.” (Id. at 32:8–25, 33:24–34:2). Lam states that it was this “nudging” that caused her pain in her back and leg and exasperated “a preexisting herniated disc injury” (id. at 34:1–6, 49:13–16), although she did not seek treatment until “[m]onths later[.]” (Id. at 49:10–12).

Ultimately, the standard is one of “objective reasonableness ․ in light of the facts and circumstances confronting [the officer].” Cugini v. City of New York, 941 F.3d 604, 608 (2d Cir. 2019). “A plaintiff satisfies this threshold if either ‘the unreasonableness of the force was apparent’ or the plaintiff signaled his distress ‘verbally or otherwise, such that a reasonable officer would have been aware of [the plaintiff's] pain.’ ” Baker v. City of New York, 551 F. Supp. 3d 258, 266 (S.D.N.Y. 2021) (quoting Cugini, 941 F.3d at 613). Here, while Lam alleges a pre-existing condition that resulted in the officer's “nudging” causing her significant pain, there are no facts in the record to suggest that the officer was or should have been aware of Lam's prior herniated disc injury. Lam does not indicate that she made any of the officers aware of her preexisting condition or that she “signaled [her] distress” at any point during her interactions with officers in the School doorway. The video evidence also does not provide any indication that Lam was suffering from pain following this interaction. “Excessive force claims require ‘serious or harmful,’ not ‘de minimis’ use of force.” Pelayo v. Port Auth., 893 F. Supp. 2d 632, 642 (S.D.N.Y. 2012). Neither the “nudge” to Lam's back nor any of the officers’ other physical contact with her constitutes a “serious or harmful” use of force.

Moreover, the officers’ limited use of force was justified. The uncontested record shows that Lam not once but twice attempted to flout the officers’ instructions by trying to go around them to gain access to the Town Hall with her sign. The officers understandably attempted to prevent Lam from impermissibly entering the School with her sign and then tried to move her from the doorway as she froze and refused to leave, blocking any other attendees from entering the Town Hall. The limited force they used in accomplishing these legitimate objectives cannot be described as “excessive” or “unreasonable.”

Further, Lam's own description of “nudging” simply does not amount to excessive force. Following the incident, Lam continued into the Town Hall and stayed for the entire event, even staying to continue protesting afterwards, and did not seek medical assistance for months after. Minimal injury does not mean that no violation occurred, but it can be evidence of the reasonableness of the force used. Here, under the objective reasonableness standard, considering the totality of the circumstances and the need for Defendants to enforce the ban on signs, Lam's assault and battery claim cannot survive summary judgment.

As Plaintiff has failed to satisfy the standard to bring an assault and battery claim, the undersigned respectfully recommends that summary judgment be granted in favor of all Defendants on this claim.

CONCLUSION

For the foregoing reasons, the undersigned respectfully recommends (1) that Defendants’ motion for summary judgment be DENIED as to (a) Plaintiffs’ § 1983 claim for violation of their equal protection rights under the Fourteenth Amendment, to the extent the claim is based on theories of selective enforcement and discriminatory application; and (b) Plaintiffs’ corresponding claim for violation of their equal protection rights under the New York State Constitution, to the extent brought against the City and DOE under a theory of respondeat superior; (2) that Defendants’ motion for summary judgment otherwise be GRANTED; and (3) that Plaintiffs’ cross-motion for summary judgment on their First Amendment claim be DENIED.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. Section 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen days, inclusive of weekends and holidays, from the date of this Report and Recommendation to file written objections thereto. See also Fed. R. Civ. 6(a), (b), and (d). Any such objections shall be filed with the Clerk of Court. Any request for an extension of time to file objections must be directed to the Honorable Lewis A. Kaplan. A failure to file timely objections will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner v. Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

FOOTNOTES

1.   The Second Circuit has noted that “[w]hether the DOE is a non-suable agency of the City under section 396 of the New York City Charter is unclear.” Broecker v. N.Y.C. Dep't of Educ., No. 23-655, 2023 WL 8888588, at *1 (2d Cir. Dec. 26, 2023) (treating “plaintiffs’ suit against the DOE as one against the City of New York”); see also Coombs-Moreno v. City of New York, No. 22 Civ. 2234 (EK) (LB), 2024 WL 4287247, at *1 (E.D.N.Y. Sept. 25, 2024), on reconsideration, sub nom. Bryan v. City of New York, 2025 WL 917826 (E.D.N.Y. Mar. 25, 2025) (acknowledging that “the Second Circuit has noted that whether the DOE is a non-suable agency of the City is ‘unclear’ ” but concluding that “the Department of Education is a suable entity” (citing Brainbuilders LLC v. EmblemHealth, Inc., No. 21 Civ. 4627, 2022 WL 3156179, at *13 (S.D.N.Y. Aug. 8, 2022)).

3.   While neither party properly puts those facts before the Court, the Court may take judicial notice of court documents and press reports, whose authenticity cannot reasonably be questioned, for the fact that they contain certain information, though not for the truth of their contents. See Fed. R. Evid. 201; Staley v. FSR Intl. Hotels Inc., 775 F. Supp. 3d 720, 726 n.3 (S.D.N.Y. 2025) (taking judicial notice of press reports and government documents in connection with summary judgment motion); Koch Indus., Inc. v. Aktiengesellschaft, 727 F. Supp. 2d 199, 224 n. 35 (S.D.N.Y. 2010) (taking judicial notice of court documents in prior action in connection with summary judgment motion).

4.   “Each [CEC] hosts a Town Hall in their district with the Chancellor once during the CEC's two-year term.” NYC Public Schools, CEC online meeting portal, https://learndoe.org/cec (last visited July 22, 2025). CECs are community volunteer boards created by the New York Education Law. See N.Y. Educ. Law § 2590-c(1); Alexander v. Sutton, 747 F. Supp. 3d 520, 533 (E.D.N.Y. 2024) (“New York Education Law Section 2590-c ․ sets forth that each community district shall be governed by a community district education council (‘CEC’) ․ consist[ing] of twelve voting members and two-non-voting members [that] are not paid a salary or stipend ․”).

5.   Defendants generally “[d]eny” the truth of this paragraph of Plaintiffs’ 56.1 statement without providing any further explanation. (D. Resp. 56.1 ¶ 21). Although Plaintiffs cite to the wrong page number in the Edwards deposition (see P. 56.1 ¶ 21 (citing to pages 6–7 rather than page 8)) for support, the Court may review the record on its own. Thus, the Court accepts Plaintiffs’ explanation of the purpose of the Town Hall as Defendants have failed to rebut Plaintiffs’ 56.1 statement and do not provide their own alternative purpose. See Emanuel v. Gap, Inc., No. 19 Civ. 3617 (PMH), 2022 WL 3084317, at *4 (S.D.N.Y. Aug. 3, 2022) (“The Local Rule contemplates the factual statement deemed admitted unless specifically controverted and supported by evidence which would be admissible at trial.”); Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.”).

6.   For about two years beginning in or around March 2020, Town Hall meetings were conducted virtually via Zoom due to the COVID-19 pandemic. (Wong Dep. 25:3–20).

7.   According to news accounts, at a Town Hall on January 16, 2020 in Bayside, Queens (three weeks before the February 4, 2020 Town Hall), Carranza exited the stage after parents angrily confronted him about issues of school safety including assaults on students. Selim Algar, Outraged Parents Jeer DOE Head Richard Carranza Off the Stage at Queens Town Hall Meeting, N.Y. Post (Jan. 17, 2020), https://nypost.com/2020/01/17/outraged-parents-jeer-doe-head-richard-carranza-off-the-stage-at-queens-town-hall-meeting. Video of the event appears to show a diverse group of concerned parents shouting at Carranza and members of the CEC. Id.

8.   Video footage depicts Lam and another protester standing before what appear to be two officers and two DOE officials. (Weekes Decl. Ex. K). One of the DOE officials can be heard saying, “no signs,” to which Lam responds, “I'll put it in my bag, I'll put it in my bag,” although the poster is visible in her hands after this statement and when she later attempts to push past the DOE officials and officers. (Id.).

9.   In his deposition, Ni stated that this was a second sign that somebody had handed him. (Ni Dep. 38:13–22).

10.   Neither Edwards nor Marino knew how the signs were brought into the Town Hall. (Edwards Dep. 39:22–25; Marino Dep. 27:6–10).

11.   In their motion for leave to amend, Plaintiffs also sought to add Edwards and another DOE official as defendants. The Court denied the motion as to those individuals, finding that the applicable three-year statute of limitations had expired and that Plaintiffs had failed to exercise diligence in attempting to identify them as John Does prior to the expiration of the limitations period. (Dkt. No. 78 at 8–15).

12.   The Second Circuit did not have occasion to review the district court's determination as to whether the sign ban was viewpoint neutral because the plaintiffs had “waived their viewpoint discrimination argument by failing to pursue it on appeal.” Id. at 60 n.2.

13.   Defendants also argue that the restriction “was not a regulation of speech but rather a regulation of conduct,” citing Tyler, 74 F.4th at 63. (Mot. at 8). The Court rejects this argument. Signs are a form of speech, and in banning signs the DOE was plainly regulating speech as well as conduct. Far from supporting Defendants’ contention, Tyler in fact recognizes that the ban on signs at issue in that case was a restriction on “the form or manner of speech,” albeit a permissible one under the circumstances of that case. Tyler, 74 F.4th at 63 (emphasis added).

14.   Lee testified that the signs on the left side of the auditorium tended to be held by non-Asian attendees and suggested they were of the opposing view, meaning in support of the DOE. (Lee Dep. 30:10–15). But the photographs provided by the parties show only signs critical of the DOE, Carranza, and Cody throughout the auditorium, including on the left side of the house. (Schwartz Decl. Exs. C-1, C-2; Weekes Decl. Ex. I). In the photo at Dkt. No. 119 Ex. C-1 provided by Plaintiffs, one of only two photos they provide of the actual February 4 Town Hall, no signs are visible on the left sign of the auditorium and the signs that can be seen all appear to support Plaintiffs’ position. (Schwartz Decl. Ex. C-1).

15.   In Adams, the Second Circuit reversed the district court's grant of summary judgment dismissing CACAGNY and the other plaintiffs’ equal protection claim, which was predicated on the theory that the SHSs admissions changes reflect a facially neutral policy that was adopted with discriminatory intent and resulted in a discriminatory effect. See 116 F.4th at 170–71 (describing plaintiffs’ theory). But the court did so based on an assumption that Plaintiffs could prove the allegation in their complaint that the policy changes were made with the discriminatory intent to reduce the number of Asian American students at the SHSs—an assumption the court was required to make because the district court had employed a bifurcated discovery procedure that deferred discovery on the issue of intent. Id. at 164–65, 168, 173. The court expressly noted that it was not deciding whether the plaintiffs could prove their allegation of discriminatory intent. Id. at 165.

16.   Plaintiffs also argue that they are “similarly situated not only to other people attending this particular Town Hall, but also to attendees at previous DOE public meetings.” (P. Opp. at 35). This argument is puzzling. There was no blanket ban on signs prior to the February 4, 2020 Town Hall, as Plaintiffs themselves emphasize (see, e.g., P. Opp. at 32), so by definition the ban could not have been selectively enforced on prior occasions. In any event, Plaintiffs provide no explanation or basis to find that attendees at “at previous DOE public meetings” are a proper pool of similarly situated individuals. The Court thus agrees with Defendants that “Plaintiffs ․ have not provided enough evidence to show that [they] are similarly situated to those who protested at an unspecified meeting in ‘January 2020.’ ” (D. Opp. at 11).

17.   In addition, Lam was unable to point to anywhere on the video where a non-Asian attendee was waved in with a sign. (Lam Dep. 121:6–10). Similarly, Lee took photos of the event and could not point to a photo he had taken of a non-Asian attendee entering with a sign. (Lee Dep. 41:3–9).

18.   Wong was allowed entry to the Town Hall with his signs (Wong Dep. 23:15–19), and Lam displayed a sign at the end of the Town Hall (Lam Dep. 107:4–18; Weekes Decl. Ex. I). Lee and Liu did not seek to carry signs into the Town Hall. (Lee Dep. 20:20–24; Liu Dep. 15:6–8). Ni was forced to surrender his sign at the entrance, and so far as the record reflects, he did not subsequently obtain or display a sign at the Town Hall. (See Ni Dep. 25:2–6). But there is no reason to believe that Ni could not have displayed a sign at the Town Hall after Deputy Chancellor Austin agreed to allow signs in.

19.   At the same time, a number of courts have recognized that “there is no de minimis qualification constraining a plaintiff's ability to sustain claims brought under the Equal Protection Clause.” Martinson v. Menifee, No. 02 Civ. 9977 (LTS) (HBP), 2007 WL 2106516, at *9 (S.D.N.Y. July 18, 2007); see also Monterey Mech. Co. v. Wilson, 125 F.3d 702, 712 (9th Cir. 1997) (concluding that “there is no de minimis exception to the Equal Protection Clause”); Long v. Munro, 2:21-cv-150, 2022 WL 19039624, at *7 n.4 (W.D. Mich. Dec. 28, 2022) (“[C]ourts are wary of categorizing any act of racial discrimination as de minimis.”) (collecting cases), R&R adopted, 2023 WL 2526101 (W.D. Mich. Mar. 15, 2023). To be clear, the Court expresses no opinion on whether there is a de minimis exception in equal protection cases or, if there is, whether the facts of this case would fall within it.

20.   Although Linehan is a summary order issued prior to January 1, 2007, and thus not citable by parties under Second Circuit Local Rule 32.1.1, courts may consider such decisions as persuasive nonprecedential authority. See, e.g., Alessi Equip., Inc. v. Am. Piledriving Equip., Inc., 578 F. Supp. 3d 467, 509 n.40 (S.D.N.Y. 2022); Smith v. Annucci, No. 13 Civ. 454 (JKS), 2014 WL 2215765, at *2 n.2 (N.D.N.Y. May 29, 2014).

21.   To the extent Plaintiffs intended to allege Fourth Amendment claims on behalf of all Plaintiffs, and the Court assumes they did not as their cause of action specifically names only Lam, summary judgment should also be granted as to those Plaintiffs. Plaintiffs Wong and Liu state that they merely watched others or heard about others being searched but were not touched or searched themselves. (See Wong Dep. 26:10–16 (responding “no” when asked if “the officers or DOE personnel at the door search[ed] you in any way”); Liu Dep. 37:7–14 (responding “no” when asked if he was subject to a “pat [ ] down” or “physically search[ed] ․ in any way”)). Plaintiff Lee states that he interpreted an officer “lift[ing] his chin up” as a request to see inside Lee's jacket and that he then opened his jacket to show he did not have a sign. (Lee Dep. at 26:21–27:2). Like Lam, Lee, who was also free to leave the School, may be said to have consented to any search that took place.In contrast, Plaintiff Ni alleges that an officer issued him what could be construed as a command: “I need to search you. I want you to open your coat to see if you have any sign.” (Ni Dep. 24:10–18). Ni alleges that he then opened his coat to show he had no sign (id.); although, as mentioned earlier, the video shows Ni exiting this interaction, removing a sign from his coat, unrolling it, and leaving it on the steps before finally being let into the School. (Weekes Decl. Ex. K 02:55-03:04). The officer did not put his hands on Ni or search his body in any way. (Ni Dep. 25:10–23). Even if this encounter could be viewed as involving a nonconsensual search, despite the fact that Ni also appears to have been free to decline to comply with the officer's instruction and leave the premises, none of Ni's allegations amount to an unreasonable search in violation of the Fourth Amendment. Ni had been instructed that he could not enter the School with signs, and officers had seen Ni with signs and directed him to discard the signs. (Ni Dep. 21:7–20, 23:4–13). Because of the government's interest in maintaining compliance with the sign ban, the minimal intrusion in asking Ni to open his jacket to show whether he still possessed a sign—particularly when it had been clear to officers that he was attempting to hide one—does not amount to an unreasonable search.

22.   Defendants also argue that the assault and battery claim fails because it is “duplicative” of Plaintiffs’ Fourth Amendment claim. (D. Opp. at 13–14). But such duplication would exist only if Plaintiffs asserted a claim for excessive force under the Fourth Amendment, and it is not clear that they have. The FAC does not use the term “excessive force” in setting forth Plaintiffs’ Fourth Amendment cause of action or anywhere else. (See FAC ¶¶ 125–26). As Lam cannot satisfy the standard for assault and battery in any event, it is unnecessary to reach this argument.

GARY STEIN United States Magistrate Judge