Connecticut Parents Union v. Russell-Tucker et al.

20-1998-cv
Connecticut Parents Union v. Russell-Tucker et al.
1
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2020
No. 20-1998-cv
CONNECTICUT PARENTS U NION,
Plaintiff-Appellant,
v.
C HARLENE R USSELL-T UCKER , in her official capacity as Acting
Commissioner, Connecticut State Department of Education, A LLAN B.
TAYLOR , in his official capacity as Chairperson of the Connecticut
State Department of Education’s State Board of Education, NED
L AMONT, in his official capacity as Governor of Connecticut, WILLIAM
TONG , in his official capacity as Connecticut Attorney General,
Defendants-Appellees,*
On Appeal from the United States District Court
for the District of Connecticut
* Under Fed. R. App. P. 43(c), Charlene Russell-Tucker is, in her official
capacity as Acting Commissioner of Education, substituted for her predecessor
Diana Wentzell. The Clerk of Court is directed to amend the caption as shown
above.

-- 1 of 21 --

2
A RGUED: JANUARY 25, 2021
D ECIDED: A UGUST 11, 2021
AMENDED O PINION FILED: A UGUST 18, 2021
Before: C ABRANES and L YNCH , Circuit Judges, and MARRERO , District
Judge.†
The question presented is whether the United States District
Court for the District of Connecticut (Stefan R. Underhill, Chief Judge)
properly dismissed the Complaint of Plaintiff-Appellant Connecticut
Parents Union (“CTPU”) for lack of Article III standing. In its
Complaint, CTPU alleged that Connecticut’s standards regarding the
racial composition of its interdistrict magnet schools violate the Equal
Protection Clause of the Fourteenth Amendment of the United States
Constitution. Because CTPU is an organization that is not directly
† Judge Victor Marrero, of the United States District Court for the Southern
District of New York, sitting by designation.

-- 2 of 21 --

3
regulated or affected by the challenged standards and because CTPU
has failed to show that it suffered an involuntary, material burden on
its core activities, we conclude that CTPU has not established an
injury-in-fact for purposes of demonstrating organizational standing.
Accordingly, we hold that the District Court properly dismissed the
Complaint and we AFFIRM the judgment of the District Court.
C HRISTOPHER M. K IESER , (Oliver J. Dunford,
Sacramento, CA, on the brief), Pacific Legal
Foundation, Palm Beach, FL, for Plaintiff-
Appellant.
D ARREN P. C UNNINGHAM , Assistant
Attorney General (Clare E. Kindall, Solicitor
General, on the brief), for William Tong,
Attorney General, Hartford, CT, for
Defendants-Appellees.

-- 3 of 21 --

4
JOSÉ A. C ABRANES , Circuit Judge:
The question presented is whether the United States District
Court for the District of Connecticut (Stefan R. Underhill, Chief Judge)
properly dismissed the Complaint of Plaintiff-Appellant Connecticut
Parents Union (“CTPU”) for lack of Article III standing. In its
Complaint, CTPU alleged that Connecticut’s standards regarding the
racial composition of its interdistrict magnet schools violate the Equal
Protection Clause of the Fourteenth Amendment of the United States
Constitution. Because CTPU is an organization that is not directly
regulated or affected by the challenged standards and because CTPU
has failed to show that it suffered an involuntary, material burden on
its core activities, we conclude that CTPU has not established an
injury-in-fact for purposes of demonstrating organizational standing.
Accordingly, we hold that the District Court properly dismissed the
Complaint and we AFFIRM the judgment of the District Court.

-- 4 of 21 --

5
I. BACKGROUND
The following facts are principally drawn from the Complaint,
construed in the light most favorable to CTPU as the non-moving
party.1
On October 23, 2017, Dianna Wentzell, the Commissioner of the
Connecticut State Department of Education (the “Commissioner”)
issued a memorandum (the “2017 RIS Memorandum”), which
implemented so-called “reduced-isolation setting standards” (the
“2017 RIS”) for Connecticut’s interdistrict magnet schools pursuant to
Conn. Gen. Stat. (“CGS”) §§ 10-264l and 10-264r.2 The 2017 RIS
1 We also refer to the transcript of a December 5, 2019 hearing before the
District Court on Defendants-Appellees’ March 26, 2019 motion to dismiss the
Complaint (“Hearing Tr.”).
2 In pertinent part, CGS § 10-264l defines an interdistrict magnet school
program as follows: “[A] program which (i) supports racial, ethnic and economic
diversity, (ii) offers a special and high quality curriculum, and (iii) requires students
who are enrolled to attend at least half-time. An interdistrict magnet school
program does not include a regional agricultural science and technology school, a
technical education and career school or a regional special education center.”

-- 5 of 21 --

6
Memorandum required that all interdistrict magnet schools in
Connecticut enroll at least 25% non-Black and non-Hispanic students
on pain of financial penalties.3
CTPU is a nonprofit advocacy group founded in 2011 “to ensure
that parents, guardians, and families are connected with the
educational resources and support system necessary to protect their
children’s educational rights thus ensuring that neither race, zip-code,
nor socio-economic status is a predictor of a child’s success.”4 CTPU
alleges that, after the implementation of the 2017 RIS (which CTPU
pointedly describes as a “hard racial quota”5), its president,
3 The 2017 RIS Memorandum provided that “[t]he Commissioner may
impose a financial penalty on the operator (up to the magnet grant amount) of an
interdistrict magnet school that does not meet the RIS for two consecutive years, or
take other measures, in consultation with such operator, to assist the operator in
complying with the applicable standard.” CTPU App’x at 27 (emphasis in original).
In January 2020, the District Court approved a settlement that eliminated racial
standards for magnet schools in the Hartford area. See Robinson v. Wentzell, No. 18-
cv-00274-SRU (D. Conn. terminated Jan. 29, 2020).
4 Complaint ¶ 6 (internal quotation marks omitted).
5 Id. ¶ 1.

-- 6 of 21 --

7
Gwendolyn Samuel, “received many phone calls from . . . parents
across the state” including “Black or Hispanic parents who were
concerned that their children did not get into one of the magnet
schools and sought guidance from [CTPU].”6
CPTU has vigorously protested the 2017 RIS, including by
“host[ing] community events, information sessions, bus tours, and
other events in order to educate the public about the statewide racial
quota’s harmful effects” and “lead[ing] legislative-reform efforts to
repeal the racial quota.”7 CTPU alleges that its “attempts to counteract
the statewide quota . . . have ‘prevented [it] from devoting [its] time
and energies to other . . . matters,’” imposing “opportunity costs” on
the organization.8
6 CTPU Opening Br. at 14-15 (citing Hearing Tr. 32-34 (CTPU App’x at 57-
60)).
7 Complaint ¶ 6.
8 CTPU Opening Br. at 20 (quoting Ragin v. Harry Macklowe Real Est. Co., 6
F.3d 898, 905 (2d Cir. 1993) (first ellipses added)).

-- 7 of 21 --

8
On February 20, 2019, CTPU filed this Complaint against
Defendants-Appellees the Commissioner; Allan B. Taylor, the
Chairperson of the Connecticut State Department of Education’s State
Board of Education; Ned Lamont, Governor of Connecticut; and
William Tong, the Connecticut Attorney General (together, the
“State”), bringing a constitutional claim under Section 1983 of the Civil
Rights Act of 1866.9 CTPU alleges that the 2017 RIS created a 75%
“cap”10 on Black and Hispanic students, which denies those students
equal protection of the laws under the Fourteenth Amendment. In its
Complaint, CTPU seeks declaratory and injunctive relief, as well as
attorneys’ fees and costs.
9 42 U.S.C. § 1983. The Complaint also refers to 42 U.S.C. § 1981, but states a
single claim for relief, asserted against Defendants-Appellees in their official
capacities. Complaint ¶¶ 35-46. Like the District Court, we construe CTPU’s claim
as arising under Section 1983. See Connecticut Parents Union v. Wentzell, 462 F. Supp.
3d 167, 171 (D. Conn. 2020) (“CTPU challenges the Act’s implementation pursuant
to 42 U.S.C. § 1983 on the ground that it violates the Fourteenth Amendment’s
Equal Protection Clause.”).
10Complaint ¶ 15.

-- 8 of 21 --

9
The State moved to dismiss the Complaint under Federal Rule
of Civil Procedure 12(b)(1), arguing that CTPU lacked standing to
bring the action. The District Court granted the State’s motion on May
26, 2020 and dismissed the Complaint without prejudice, holding that
CTPU had “not plausibly alleged that it suffered an injury ‘fairly
traceable’ to [CGS §§ 10-264l and 10-264r] or to actions of the [State].”11
Judgment entered on May 27, 2020, and CTPU timely appealed.
On August 19, 2020 (the day after CTPU filed its opening brief
on appeal), the Commissioner issued a new memorandum (the “2020
RIS Memorandum”), which maintained the race-based admission
standards for Connecticut’s interdistrict magnet schools but
eliminated monetary penalties and (assertedly) any other “negative
consequences” for non-compliance with those RIS standards.12 On
11 Wentzell, 462 F. Supp. 3d at 172.
12 Memorandum of Miguel A. Cardona, Connecticut Comm’r of Educ. on
Interdistrict Magnet Schools Reduced Isolation Standards (Aug. 19, 2020) (“If an
interdistrict magnet school does not meet the applicable RIS standard promulgated

-- 9 of 21 --

10
appeal, in addition to arguing that CTPU lacks standing, the State
argues the issuance of the 2020 RIS Memorandum moots this appeal.
II. DISCUSSION
“A district court properly dismisses an action under Fed. R. Civ.
P. 12(b)(1) for lack of subject matter jurisdiction if the court lacks the
statutory or constitutional power to adjudicate it,” such as when “the
plaintiff lacks constitutional standing to bring the action.”13 We review
de novo a district court’s dismissal of a complaint for lack of standing,
by the Commissioner, there shall not be any negative consequences for any school,
school operator, or the State Department of Education . . . . However, schools must
be operating pursuant to an approved compliance plan designed to bring the school
population into compliance with the standards outlined herein and maximize (a)
reduced-isolation educational opportunities; and/or (b) opportunities in settings
with evidence of other indices of diversity, including but not limited to, racial,
geographic, socioeconomic, percentage of special education students and English
Learner students, achievement and other factors. An interdistrict magnet school
that does not meet the 75% Residency Standard as set forth herein, must be
operating pursuant to an approved compliance plan designed to bring the school
into compliance with the residency enrollment requirements in order to remain
eligible for the interdistrict magnet operating grant.”). CTPU suggests that the
retention of racial standards in the 2021 RIS memorandum is sufficient to impose a
legally cognizable injury.
13 Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l, 790 F.3d 411, 416-
17 (2d Cir. 2015) (internal citations and quotation marks omitted).

-- 10 of 21 --

11
“construing the complaint in plaintiff’s favor and accepting as true all
material factual allegations contained therein.”14 Nonetheless, a
plaintiff asserting standing must “allege facts that affirmatively and
plausibly suggest that it has standing to sue” and courts “need not
credit a complaint’s conclusory statements without reference to its
factual context.”15 We may “consider affidavits and other materials
beyond the pleadings”16 relied upon by the District Court below to
resolve the issue of standing.
Organizations like CTPU may have standing in one of two
ways: by establishing so-called “associational” or “representational”
standing to sue on behalf of its members, or by establishing that it was
14 Katz v. Donna Karan Co., 872 F.3d 114, 118 (2d Cir. 2017) (internal quotation
marks omitted); see also Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012) (when
reviewing the dismissal of a complaint for lack of jurisdiction, “we review factual
findings for clear error and legal conclusions de novo, accepting all material facts
alleged in the complaint as true and drawing all reasonable inferences in the
plaintiff’s favor.”).
15 Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145-46 (2d Cir. 2011).
16 J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004).

-- 11 of 21 --

12
directly injured as an organization.17 Here, CTPU does not assert
representational standing, and alleges only direct injury to itself as an
organization. To succeed on that theory, it is CTPU’s burden to satisfy
the “irreducible constitutional minimum of standing”18 by showing:
“(i) an imminent injury in fact to itself as an organization (rather than
to its members) that is distinct and palpable; (ii) that its injury is fairly
traceable to [the challenged act]; and (iii) that a favorable decision
would redress its injuries.”19
17 Compare Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)
(describing criteria for associational or representational standing), with Warth v.
Seldin, 422 U.S. 490, 511 (1992) (observing that an organization can “have standing
in its own right”).
18 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
19 Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868
F.3d 104, 109 (2d Cir. 2017) (internal quotation marks omitted).
We note that although the District Court held that CTPU failed to establish
the second of these elements (that is, causation, or “traceability”), the parties agree
that our standing inquiry here turns principally on the first element: injury-in-fact.
We agree with CTPU that “injury and causation are often entangled,” for instance,
when “[t]he question whether an organization has suffered an opportunity cost
[and thus a legal injury]” is in many cases “intertwined with the question whether
the organization was ‘compelled’ to expend resources. . . .” CTPU Opening Br. at
27 n.3. The connection between injury and causation is particularly close where, as
here, the plaintiff is not the object of the challenged legislation and is therefore not

-- 12 of 21 --

13
An organization can satisfy the injury prong if it shows that the
challenged action did not merely harm its “abstract social interests”
but “perceptibly impaired” its activities.20 We have made clear that an
organization may suffer the requisite injury when it “diverts its
resources away from its [other] current activities,” or otherwise incurs
“some perceptible opportunity cost.”21
Here, CTPU maintains that its work was perceptibly impaired
because “it expend[ed] resources to counteract illegal activity touching
on its core mission”22 and in so doing “divert[ed] resources away from
other activities.”23 CTPU thus argues that it sufficiently pleaded an
under any direct physical or legal compulsion that would require it to incur costs
constituting an injury. But here, because we conclude that CTPU fails to
demonstrate injury-in-fact, consideration of the injury prong is sufficient to resolve
the dispute before us.
20 Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
21 Moya v. United States Dep't of Homeland Sec., 975 F.3d 120, 129-30 (2d Cir.
2020). It follows that expenditures may satisfy the injury prong even if there is no
increase in the organization’s total expenditures.
22 CTPU Reply Br. at 7.
23 Id. at 13.

-- 13 of 21 --

14
injury-in-fact on the basis of the “opportunity costs” to the
organization from its “attempts to counteract the statewide
quota . . . [that] have ‘prevented [it] from devoting [its] time and
energies to other . . . matters[.]’”24
We disagree. Under CTPU’s argument, an organization could
establish standing by claiming to have been injured by any law or
regulation touching any issue within the scope of its mission (which
the organization itself can define) so long as it expends resources to
oppose that law or regulation. For example, under CTPU’s theory of
organizational standing, CTPU would be able to successfully plead an
injury simply by pointing to any Connecticut law relating to education
that it makes a significant effort to oppose.
Accordingly, we reject such an expansive concept of
organizational injury for standing purposes. We have held that where,
24 CTPU Opening Br. at 20 (quoting Ragin v. Harry Macklowe Real Est. Co., 6
F.3d 898, 905 (2d Cir. 1993) (first ellipses added)).

-- 14 of 21 --

15
as here, an organization is not directly regulated by a challenged law
or regulation, it cannot establish “perceptible impairment”25 absent an
involuntary material burden on its established core activities. In other
words, the challenged law or regulation must impose a cost (e.g., in
time, money, or danger) that adversely affects one of the activities the
organization regularly conducted (prior to the challenged act) in
pursuit of its organizational mission. For example, we have recognized
that a cognizable injury may arise via a burden that is imposed on an
organization when there is an increased demand for an organization’s
services.26 But we think that expenditures or other activities, if
25 Havens, 455 U.S. at 379.
26 See, e.g., New York State Citizens' Coal. for Child. v. Poole, 922 F.3d 69, 75 (2d
Cir. 2019), cert. denied, 140 S. Ct. 956 (2020) (an organization promoting the interests
of adoptive and foster families was injured by nonpayment of child-maintenance
funds to families when it spent “hundreds of hours” fielding “phone calls from
aggrieved foster families”); see also New York v. United States Dept. of Homeland Sec.,
969 F.3d 42, 60-61 (2d Cir. 2020) (an organization providing legal and social services
to non-citizens was injured by a new rule that increased demand for its services
and necessitated costly changes to its education programs); Nnebe v. Daus, 644 F.3d
147, 157 (2d Cir. 2011) (taxi-driver union was injured by summary suspension of
drivers’ licenses because the expenditure of resources to assist suspended drivers
(through counseling and referrals to attorneys) constituted an “opportunity cost”).

-- 15 of 21 --

16
incurred at the organization’s own initiative, cannot support a finding
of injury—that is, when the expenditures are not reasonably necessary
to continue an established core activity of the organization bringing
suit, such expenditures, standing alone, are insufficient to establish an
injury in fact for standing purposes. In other words, an organization’s
decision to embark on categorically new activities in response to action
by a putative defendant will not ordinarily suffice to show an injury
for standing purposes, even if the organization’s own clients request
the change.
This analysis of organizational injury coheres with our decision
in Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster
Bay,27 on which CTPU heavily relies. In Centro, we held that an entity
with a mission of “end[ing] the exploitation of Latino immigrant
workers” and promoting the social integration of those workers by
means of “community organizing, legal support, education,
27 868 F.3d 104.

-- 16 of 21 --

17
leadership development, and building worker cooperatives”28 had
sufficiently shown it had suffered an organizational injury from an
ordinance that banned soliciting employment on a public right-of-
way.
In concluding that the organization had suffered a cognizable
injury in Centro, we noted three ways in which the entity’s core
activities were burdened by the challenged ordinance: (i) the
ordinance would require the physical dispersal of laborers, which
would impede organizing activity, one of the entity’s primary
“responsibilities”;29 (ii) the entity would have to “divert resources
from other of its activities to combat the effects of the [challenged]
[o]rdinance”30—i.e., the entity would have to expend additional
resources to continue organizing after the forced dispersal of the
28 Id. at 109.
29 Id. at 110.
30 Id.

-- 17 of 21 --

18
laborers;31 (iii) the entity’s members would face the risk of “erroneous
arrest” while conducting “advocacy activities” among the laborers,
since those officials enforcing the challenged ordinance might not
distinguish advocates from laborers.32
Our analysis in Centro demonstrates that the injury-in-fact
inquiry should focus on the involuntary and material impacts on core
activities by which the organizational mission has historically been
carried out.
Applying the principles we have stated, we conclude that CTPU
has not met its burden to show an injury in fact. CTPU speaks loosely
of its expenditures to counteract activity—that is, the 2017 RIS—
“touching on” its “core mission,”33 but fails to identify any restrictions
31 Id. (“[I]t is also clear that the Ordinance will force [the organization] to
divert money from its other current activities to advance its established
organizational interests (i.e., if the laborers are dispersed, it will be more costly to
reach them).”).
32 Id. at 111 (internal quotation marks omitted).
33 CTPU Reply Br. at 7.

-- 18 of 21 --

19
on its ability to perform the core activities—such as meetings, lectures,
and general organizing—by which it pursued its mission prior to the
2017 RIS. To the extent CTPU claims that the 2017 RIS triggered an
increased demand for parent counseling, CTPU fails to sufficiently
plead that any resulting costs were material.34 Further, even construing
the record in CTPU’s favor, as we must, it is clear that CTPU incurred
34 We note that the record suggests that CTPU’s counseling activities, at least
prior to the 2017 RIS, were incidental and occasional, not “core.” See Hearing Tr.
31:11-16 (CTPU App’x at 56) (“So we’re not counselors, per se. We consult with
attorneys, constitutional attorneys, people that are educators. So we consult with
other experts that can help the parent . . . .”). For example, before the District Court,
the CTPU President, Ms. Samuel, said she fielded “maybe about 15” telephone calls
regarding the 2017 RIS quotas. Hearing Tr. 31:4-5 (CTPU App’x at 56). Such a
number of calls falls far short of, for example, the “hundreds of hours” of phone
calls found sufficient to show injury in comparable cases. Poole, 922 F.3d at 75; see
also Note 26, ante. Even if some parents welcomed or even requested some of the
costly community organizing and advocacy that ensued, CTPU has not shown that
any of these activities were reasonably required to handle a surge of parental
requests for advice. During oral argument on Defendants-Appellees’ motion to
dismiss, Ms. Samuel (speaking at the invitation of the District Court) asserted that
CTPU began hosting community meetings because she “couldn’t serve . . . all [the
concerned parents], even with our volunteer network.” Hearing Tr. 31:17-18 (CTPU
App’x at 56). Ms. Samuel’s assertion (which was not made under oath and does not
correspond to anything in the Complaint or her Declaration of April 9, 2019) is too
vague and conclusory to support a finding of injury-in-fact. See, e.g., J.S. ex rel N.S.,
386 F.3d at 110 (“We may consider affidavits and other materials beyond the
pleadings to resolve the jurisdictional issue, but we may not rely on
conclusory . . . statements . . . .”).

-- 19 of 21 --

20
costs because it decided to initiate a campaign against the 2017 RIS to
advance its own “abstract social interests”;35 thus any costs CPTU
incurred from this campaign were not involuntary. Accordingly,
because CTPU has not shown an injury in fact, we hold that CTPU
lacks organizational standing.
As a final matter, because we hold that CTPU lacks Article III
standing, we need not consider the State’s contention that the issuance
of the 2020 RIS mooted CTPU’s claims.36
III. CONCLUSION
To summarize: we hold that an organization that is not directly
regulated or affected by a challenged law or regulation cannot
establish injury-in-fact for purposes of organizational standing absent
35 Havens Realty, 455 U.S. at 379.
36 See, e.g., Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85 (1999)
(holding that, because the principle that jurisdictional questions must be resolved
before merits issues “does not dictate a sequencing of jurisdictional issues,” a court
may “choose among threshold grounds for denying audience to a case on the
merits”).

-- 20 of 21 --

21
a showing that it suffered an involuntary and material burden on its
established core activities. Because CTPU has not made this required
showing, the District Court properly dismissed the Complaint for lack
of standing without prejudice.37 We thus AFFIRM the judgment of the
District Court.
37 See, e.g., Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54–55 (2d Cir. 2016)
(“[W]here a complaint is dismissed for lack of Article III standing, the dismissal
must be without prejudice, rather than with prejudice. Such a dismissal is one for
lack of subject matter jurisdiction and without jurisdiction, the district court lacks
the power to adjudicate the merits of the case. Accordingly, where there is a lack of
Article III standing, Article III deprives federal courts of the power to dismiss a case
with prejudice.” (internal citations and quotation marks omitted)).

-- 21 of 21 --