New York v. Niagara-Wheatfield Central School District

22-2178-cv
New York v. Niagara-Wheatfield Central School District
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2023
(Argued: October 27, 2023 Decided: October 15, 2024)
Docket No. 22-2178-cv
PEOPLE OF THE STATE OF NEW YORK, BY LETITIA J AMES, ATTORNEY GENERAL
OF THE S TATE OF NEW YORK ,
Plaintiff-Appellant,
v.
NIAGARA-WHEATFIELD CENTRAL SCHOOL DISTRICT,
Defendant-Appellee.
Before: C ABRANES, S ACK , AND MERRIAM, Circuit Judges.
On this appeal, we address the issue of what a state bringing suit in federal
court must show to establish its standing in parens patriae. The State of New York,
through its Attorney General, sued the Niagara-Wheatfield Central School District
for its officials’ alleged failure to address repeated complaints of student-on-
student sexual assault, sexual harassment, and gender-based violence and
bullying. The United States District Court for the Western District of New York
(Sinatra, Jr., Judge) dismissed this case on the pleadings, concluding that the state
lacked parens patriae standing to bring the suit. The court reasoned that because
the incidents alleged were factually distinct from one another, the State of New
York had not shown that the School District’s failure to act in those instances
constituted a broader “policy or practice” of discriminating against student
victims of gender-based violence and harassment. Absent such a policy or
practice, the court concluded, the State of New York could not, as a matter of law,
make the showing required for parens patriae standing that the School District’s
conduct affected a “substantial segment” of its population.

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We conclude that showing an injurious policy or practice enforced against
a target population is not necessary to satisfy the substantial-segment prong of the
parens patriae standard. We further conclude that the State of New York has met
its burden of pleading parens patriae standing at this stage of the litigation, and
therefore
REVERSE the judgment of the district court and REMAND for further
proceedings consistent with this opinion.
Judge Cabranes concurs dubitante in a separate opinion.
ALEXANDRIA TWINEM (Barbara D.
Underwood, Andrea Oser, on the brief), for
LETITIA J AMES, Attorney General for the
State of New York, Albany, NY, for
Appellant.
D ANIEL R. L E COURS (Svetlana K. Ivy, on the
brief), Harris Beach PLLC, Albany, NY, and
Pittsford, NY, for Appellee.
S ACK , Circuit Judge:
This appeal requires us to identify what a state bringing a lawsuit in a
federal court must show to establish so-called “parens patriae” standing. When a
state sues in parens patriae, “literally[,] [as] ‘parent of the country’”, it
“traditionally [takes on] the role of . . . sovereign and guardian of persons under
a legal disability to act for themselves.” West Virginia v. Chas. Pfizer & Co., 440
F.2d 1079, 1089 (2d Cir. 1971). The “doctrine has its antecedent in the common-
law concept of the ‘royal prerogative,’” which similarly recognized “the king’s

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inherent power to act as the guardian” for those without the legal capacity to
vindicate their rights. Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 215 (2d Cir.
2013) (citing Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972)). In modern
parens patriae suits, a state “must articulate a ‘quasi-sovereign interest’ distinct
‘from the interests of particular private parties,’ such as an ‘interest in the health
and well-being—both physical and economic—of its residents in general.’” Id.
(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982)).
Here, the State of New York, through its Office of the Attorney General
(“OAG”), brought suit against the Niagara-Wheatfield Central School District
(the “School District”). The OAG alleged in its amended complaint (the
“Complaint”) that School District officials had failed to address repeated
complaints of student-on-student sexual assault, sexual harassment, and gender-
based violence and bullying.
The United States District Court for the Western District of New York
(Sinatra, Jr., Judge) dismissed the Complaint, concluding that it failed to plausibly
plead that the state had parens patriae standing. The court reasoned that, because
the OAG had based its claim on factually distinct incidents, it had not
successfully asserted that the School District engaged in a broader policy or

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practice of failing to protect student victims of gender-based violence and
harassment. Absent such a policy or practice, it decided, the OAG could not
make the showing required for parens patriae standing that the School District’s
conduct affected a “substantial segment” of New York State’s population.
We conclude that showing an injurious policy or practice enforced against
a target population is not necessary to satisfy the substantial-segment prong of
the parens patriae standard. We further conclude that the OAG has met its
burden of plausibly alleging parens patriae standing at this stage of the litigation,
and therefore reverse the judgment of the district court and remand for further
proceedings consistent with this opinion.
BACKGROUND
I. Factual Allegations
The OAG’s allegations in this litigation fall into three categories: First are
detailed assertions of how four of the School District’s students were subjected to
sexual assault, sexual harassment, or gender-based violence and bullying by
other students; how the four student victims and their parents repeatedly
notified the School District and requested remedial action; and how the School
District consistently failed to respond adequately. Second is the allegation that

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the School District knew of, but ignored, at least thirty similar incidents. And
third are allegations that the School District’s lapses affected not only the student
victims, but the School District’s community as a whole. “In reviewing [the
School District]’s motion for judgment on the pleadings, we draw all facts—
which we assume to be true unless contradicted by more specific allegations or
documentary evidence—from the Complaint . . . .” Kirkendall v. Halliburton, Inc.,
707 F.3d 173, 175 n.1 (2d Cir. 2013) (internal quotation marks and citation
omitted). It bears emphasis that what follows—which many might well find
disturbing—are allegations only. But at this stage of the proceedings, a court is
concerned with whether allegations are plausible, not whether those allegations
have been established as facts.
A. The School District’s Alleged Failure to Respond to Four Individual
Students’ Complaints of Sexual Assault, Sexual Harassment, and Gender-
Based Violence and Bullying
T.G.’s rape and subsequent bullying. In May 2018, the OAG alleges, T.G., a
female rising senior at Niagara Wheatfield Senior High School (the “High
School”), was raped by E.D., a male rising senior at the High School, in E.D.’s
home. T.G. reported the incident to the police, after which E.D. was arrested and

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charged. Soon thereafter, T.G. obtained a restraining order prohibiting E.D. from
coming near T.G. outside of the High School.
In an attempt to ensure T.G.’s safety during the upcoming 2018–19 school
year, T.G.’s mother met with the High School’s then-Principal Michael Mann
before the school year began. T.G.’s mother showed Mann the restraining order,
as well as text messages from E.D. to T.G. in which E.D. apologized for what he
had done to her. Mann promised the mother that T.G. and E.D. would not have
contact with one another during the school year, but declined to offer a concrete
safety plan or to punish E.D., because the criminal charges had not, at least at
that time, been resolved against him.
The Complaint further alleges that in the fall of that year, E.D. “went out of
his way” to “frequently stand outside [of T.G.’s] classroom,” “wait for her to
walk out,” and “glare at her.” Am. Compl. ¶ 22. Encounters of this kind
happened multiple times every week even though T.G.’s and E.D.’s lockers were
not near one another. During the second week of the school year, T.G. notified
the school counselor of those incidents. The school took no action. T.G. suffered
a panic attack thereafter.

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At an “open house,” the High School’s Assistant Principal, Jeff White,
approached T.G.’s family and stated, in front of other students and parents, that
in White’s view, “TG had faked the panic attack for attention.” Id. ¶ 24. T.G., a
school cheerleader, began to absent herself from cheerleading practice. T.G.’s
cheerleading coach refused to excuse her absences, allegedly stating that “girls
get assaulted all the time.” Id. ¶ 25.
In December 2018, other students began to harass T.G. about the rape she
had reported. One classmate sent T.G. a picture of E.D. over Snapchat, with the
caption “your boyfriend.” Id. ¶ 26. T.G. showed the message to Principal Mann,
who took no action. Other classmates sent T.G. text messages insinuating that
she had enjoyed the sexual assault by E.D. T.G. showed the messages to the
assistant principal, who took no action. When classmates told T.G. to “watch her
back,” T.G.’s mother informed the School District’s superintendent, but received
no response. Id. ¶ 28. None of the students involved in the alleged offending
behavior was disciplined, and the school continued to permit E.D. to attend class
in a room across from T.G.’s classroom. In January 2019, E.D. continued to stare
repeatedly at T.G. in the hallway. T.G. began to miss classes because of these
events.

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On May 23, 2019, E.D. pleaded guilty to the assault on T.G., which was
charged as rape in the third degree. T.G.’s mother informed the school about the
conviction, but was told by Principal Mann that, on the advice of counsel, E.D.
would be permitted to attend prom, graduation, and all other end-of-year school
functions.
Later in May, T.G.’s mother posted on a social media platform an account
of how the School District had failed to address her requests to shield her
daughter from E.D. By the following morning, T.G.’s mother had received “a
hundred messages from other parents in the District, expressing concern that a
rapist was in school with their children all year long.” Id. ¶ 36. On May 31, 2019,
students at the High School organized and attended a walkout in protest over the
High School’s handling of the incident. Principal Mann discouraged the
walkout. Staff at the High School blocked doorways in an attempt to prevent
more students from walking out; several students were suspended because of
their participation in the event. A video recording shows Principal Mann telling
student protestors that the walkout was not “civil,” even though no violence or
unrest had occurred. Id. ¶ 39. A female student responded asking whether

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“[a]llowing all of us girls to be in danger is civil?” Id. The walkout garnered
national media attention. E.D. was later expelled.
C.C.’s gender-based bullying. C.C., a female student, was bullied because
of the clothing she wore while a student at Edward Town Middle School and the
High School. Throughout middle school, C.C.’s peers called her “gay” and
“transgender” because she wore stereotypically male outfits. Am. Compl. ¶ 43.
C.C. notified her school counselor, Dr. Peters, who initially permitted her to
work in his office but eventually told her to return to the classroom. The
bullying continued.
As a High School student, C.C. began to wear more stereotypically
feminine clothing in an attempt to avoid further harassment. However, C.C.’s
peers then called her “fat,” “ugly,” a “slut,” and in one case told her to kill
herself. Id. ¶¶ 45–46. Throughout the ninth grade, C.C. and her family
repeatedly informed Dr. Peters of this harassment, but neither he nor any
administrator in the School District took action to prevent its further occurrence.
In December 2019, after the onset of anxiety and depression, and having
seen a counselor and a psychiatrist, C.C. stopped attending the High School.
When C.C. requested a transfer to a neighboring high school, the School District

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refused. Instead, it called Child Protective Services, New York State’s agency
tasked with protecting the well-being of children, because C.C. was missing
classes. As a result of her harassment and bullying, unmitigated by any
protective action by the School District, C.C. dropped out of the High School. At
the time the Complaint was filed in federal district court in August 2021, C.C.
had not received a high school diploma.
A.S.’s gender-based harassment and physical assault. A.S., a female
student, attended the High School in the spring of 2020. Around that time, a
male football player at the High School created a TikTok video displaying other
football players’ messages mocking A.S. The video included comments by one
boy that A.S.’s sweatpants made it look like she had male genitalia, and by
another boy that he would not have sex with A.S. The video was shared among
the school’s student body.
Shortly thereafter, female friends of the football players began harassing
A.S. A school pep rally turned into a violent physical assault of A.S. Members of
the sophomore class engaged in derogatory chanting about A.S. and five
sophomore girls displayed a poster about A.S. reading “We don’t want you.”
Am. Compl. ¶ 54. The five girls then assaulted A.S., hitting her in the head

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eleven times. A.S.’s mother went to the principal’s office and described the
incident to Acting Principal Jeff White. The High School did not take any action.
Instead, White suggested to A.S.’s mother that A.S. should not attend the
following day’s school dance.
A.S.’s mother repeatedly followed up with both the High School and the
School District’s superintendent seeking protective steps for her daughter. She
received no response, and nothing was done. Because A.S. had become afraid of
attending the High School, she eventually transferred to a private school.
L.W.’s sexual assault and subsequent sexual harassment and bullying.
L.W., a female student, attended second grade at Errick Road Elementary School
(the “Elementary School”) in 2017. That year, L.W. was sexually assaulted in her
housing complex by a neighbor, a fifth grader at the Elementary School. L.W.’s
mother reported the sexual assault to local law enforcement officials, Elementary
School principal Nora O’Bryan, and School District Superintendent Daniel
Ljiljanich. A court placed the assailant on probation and ordered the assailant’s
family to move out of L.W.’s housing complex. However, the School District
took no action against the assailant, or to shield L.W. from the assailant at school.
Instead, Superintendent Ljiljanich informed L.W.’s mother that, if she wished

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L.W. to be safe from her assailant, she would have to move to another area so
L.W. could attend a different school.
According to the allegations, L.W.’s assailant continued to attend L.W.’s
school and would eat lunch in a space near L.W. every day. When passing L.W.,
the assailant would touch L.W.’s arm and tell her that she was “damaged goods”
and that “no one [would] ever love [her].” Am. Compl. ¶ 64. On another
occasion, the assailant followed L.W. into a school bathroom. Superintendent
Ljiljanich did not return L.W.’s mother’s repeated calls, and Principal O’Bryan
did nothing to protect L.W., despite L.W.’s mother’s expressed concerns.
L.W.’s assailant eventually moved out of the School District. Even then,
however, other students at the Elementary School now allegedly called L.W.
“damaged goods,” based on what the assailant had said about L.W. Id. ¶ 67.
They also told L.W. that she had enjoyed what her assailant had done to her. The
sexual assault and the continued bullying thereafter caused L.W. to develop
physical manifestations of stress and required her to seek personal counseling for
two years.

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B. The School District’s Failure to Respond to Known Similar Incidents
The OAG further alleges in its Complaint that the School District was
notified of “at least thirty incidents of sexual assault, harassment, or gender-
based bullying in the last few years.” Am. Compl. ¶ 69; see also id. ¶ 5 (similar).1
The School District has taken no action in response to any of them, be it by
“creat[ing] a single written safety plan,” “document[ing] any follow-up to ensure
the safety of any of these students,” taking other “basic steps to prevent or
respond to future sexual assaults,” or “tak[ing] any steps to develop preventative
policies or reform its practices.” Id. ¶¶ 69–70, 72; see also id. ¶¶ 4–5 (similar).
Moreover, the School District ignored repeated offers by the Rape Crisis Program
of the Young Women’s Christian Association for the Niagara Frontier (“YWCA”)
to provide educational programming on domestic and dating violence—
programming the organization provides to every other school district in Niagara
County. In sum, according to the allegations, the School District refused to act in
the face of known and frequent complaints of sexual assault, harassment, or
1 It is not clear from the face of the Complaint whether these thirty or more incidents include the
four detailed incidents recounted above. See Am. Compl. ¶ 69 (“The District has been notified
of at least thirty incidents of sexual assault, harassment, or gender-based bullying in the last few
years.”).

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gender-based bullying—whether through general policies aimed at prevention,
individually tailored remedial actions, or any other means.
C. Broader Effects on the Student Body and School Community
The School District’s consistent refusal to act allegedly led to several
broader effects, impacting many more than the four student victims. First, the
Complaint alleges that the four student victims’ harassment and bullying was
perpetrated by whole groups of students, not merely individuals. See Am.
Compl. ¶¶ 26–28, 30 (describing T.G.’s harassment by multiple students because
of E.D. having reportedly raped her), id. ¶¶ 43–46 (describing C.C. repeatedly
being bullied, evidently by more than one student), id. ¶¶ 52–55 (describing A.S.
being mocked by members of the football team and her being bullied and
assaulted by the players’ friends), id. ¶ 67 (describing L.W. being bullied by
“other students . . . based on what [L.W.’s] assailant told them about [her]”).
Thus, the incidents affecting these four victims are alleged to have directly
involved dozens of students.
Second, the Complaint alleges that the School District’s failure to address
these behaviors “indicates to all students” that the School District will not protect
them from sexual assault, harassment, or gender-based bullying. Id. ¶ 72.

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According to the Complaint, this “indifference . . . impacts the student body and
the school community as a whole” by signaling to all of its members that School
District personnel will not act to ensure student safety. Id. ¶ 5. This manifested
in the School District’s repeated refusal to accept educational programming on
domestic and dating violence designed to benefit the entire School District
community, id. ¶ 71, and in the occurrence of at least “thirty documented
incidents of sex discrimination, sexual harassment, sexual assault, and gender-
based bullying at [the School District],” id. ¶ 5. In T.G.’s case, parents and
students explicitly voiced their concern that the School District’s inaction was
leaving them unprotected. See id. ¶ 36 (alleging that T.G.’s mother had received
“a hundred messages from other parents in the District, expressing concern that
a rapist was in school with their children all year long”); id. ¶ 39 (alleging that a
High School student confronted Principal Mann for “[a]llowing all of us girls to
be in danger”). These failures by the School District are alleged to give students
and their parents “a reasonable basis to believe [the students] are, in fact, in
danger.” Id. ¶ 72.

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II. Procedural Background
On June 23, 2021, the OAG filed the original complaint in the United States
District Court for the Western District of New York. On August 24, 2021, before
any responsive pleadings had been filed, the OAG filed the (presently operative)
Complaint, bringing a Title IX claim and a state law claim for negligent
supervision against the School District. The School District answered, and on
March 10, 2022, moved for a judgment of dismissal on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).2
On May 11, 2022, United States Magistrate Judge for the Western District
of New York Leslie G. Foschio issued a Report and Recommendation (“R&R”),
recommending that the district court dismiss the OAG’s Title IX claims for lack
of parens patriae standing and decline to exercise supplemental jurisdiction over
the state-law claim of negligent supervision. However, if the district court were
to determine, contrary to the recommendation, that the OAG had established
standing in parens patriae to bring its Title IX claim, the R&R recommended that
the court hold that the OAG had plausibly pleaded a Title IX claim, exercise
2 Federal Rule of Civil Procedure 12(c) provides: “After the pleadings are closed—but early
enough not to delay a trial—a party may move for judgment on the pleadings.”

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supplemental jurisdiction over the negligent-supervision claim, and permit both
to proceed to discovery.
On August 26, 2022, the district judge, over the OAG’s objection, adopted
the R&R’s reasoning that the OAG lacked parens patriae standing. The district
judge agreed with the R&R that the OAG had alleged four factually distinct
incidents that did not reveal a generalized discriminatory “policy or practice” of
failing to protect victims of gender-based assault, harassment, and bullying in
the School District. Without such a policy or practice, the district court
continued, the OAG could not make the required showing for parens patriae
standing that the School District’s conduct had affected a substantial segment of
the state’s population. The district court dismissed the Title IX claim on that
basis, declined to exercise supplemental jurisdiction over the state-law claim of
negligent supervision, denied the OAG’s request for leave to replead (raised for
the first time in objection to the R&R) as untimely and futile, and dismissed the
case with prejudice.
On September 26, 2022, the OAG timely appealed to this Court, arguing
that the district court had committed three reversible errors. First, the
substantial-segment prong of the parens patriae standing test does not require a

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showing that the defendant engaged in an injurious policy or practice. Second,
and in any event, the OAG had shown a consistent practice by the School District
of repeatedly refusing to protect students subjected to gender-based assault,
harassment, and bullying. Third, the district court abused its discretion in
denying the OAG’s request for leave to amend its Complaint. For the reasons
that follow, we agree with the OAG on the first issue, reverse on that basis, and
therefore do not reach the second and third issues.
STANDARD OF REVIEW
We review a district court’s determination of standing de novo. Maddox v.
Bank of N.Y. Mellon Tr. Co., 19 F.4th 58, 62 (2d Cir. 2021). Where, as here,
“standing is challenged on the basis of the pleadings, we accept as true all
material allegations of the complaint, and must construe the complaint in favor
of the complaining party.” Bohnak v. Marsh & McLennan Cos., 79 F.4th 276, 283
(2d Cir. 2023). Nonetheless, at the pleading stage, “the plaintiff must ‘clearly . . .
allege facts demonstrating’ each element” of standing. Spokeo, Inc. v. Robins, 578
U.S. 330, 338 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). A denial of
leave to amend the complaint is reviewed “for abuse of discretion, unless the
denial was based on an interpretation of law, such as futility, in which case we

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review the legal conclusion de novo.” Panther Partners Inc. v. Ikanos Commc’ns,
Inc., 681 F.3d 114, 119 (2d Cir. 2012).
DISCUSSION
I. Parens Patriae Standing
A. Legal Framework
“[T]he doctrine of standing . . . requires federal courts to satisfy themselves
that the plaintiff has alleged such a personal stake in the outcome of the
controversy as to warrant [its] invocation of federal-court jurisdiction.” Coal. for
Competitive Elec., Dynergy Inc. v. Zibelman, 906 F.3d 41, 58 (2d Cir. 2018) (quoting
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)); see also Off. Comm. of
Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 156
(2d Cir. 2003) (“[B]ecause standing is jurisdictional under Article III, it is a
threshold issue.” (alterations adopted and citation omitted)).
A state seeking to protect “a ‘quasi-sovereign interest’ distinct ‘from the
interests of particular private parties,’ such as an ‘interest in the health and well-
being . . . of its residents in general,’” may file suit in federal court in parens
patriae. Purdue Pharma, 704 F.3d at 215 (quoting Snapp, 458 U.S. at 607); see also
Connecticut v. Cahill, 217 F.3d 93, 97 (2d Cir. 2000). A state suing in parens patriae

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must establish “(1) [an] injury to a sufficiently substantial segment of the state’s
population; (2) a quasi-sovereign interest; and (3) an inability for individual
plaintiffs to obtain complete relief.” New York v. Griepp, 991 F.3d 81, 131 (2d Cir.),
vacated on other grounds on rehearing, 11 F.4th 174 (2d Cir. 2021).
We conclude, and the School District does not dispute, that the OAG has
adequately alleged that it is seeking to vindicate a quasi-sovereign interest—“the
health and welfare,” Snapp, 458 U.S. at 607, of students exposed to gender-based
violence and harassment whether as victims, perpetrators, or bystanders, and
their families—and that the individuals on whose behalf it is bringing suit cannot
obtain complete relief.3 See Appellant’s Br. at 15 and Appellee’s Br. at 10–15
(asserting failure to allege harm to a substantial segment of the state’s population
as the only basis for the defendant’s assertion that parens patriae standing is
lacking). The only issue for us to decide with respect to standing, then, is
whether the OAG’s allegations would, if proved, establish that the School
District’s conduct affected a sufficiently substantial segment of New York State’s
population. For the reasons set forth below, we conclude that they would.
3 Students, of course, pass through individual schools in just a few years, making it particularly
likely that without State intervention, the School District community would be unable to obtain
meaningful relief.

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B. Analysis
1. The substantial-segment standard as established by 11 Cornwell Co.
To satisfy a court that a sufficiently substantial segment of the state’s
population was injured, a state must establish (1) an “injury to an identifiable
group of individual[s],” and (2) “indirect effects of the injury” ranging beyond
that identifiable group. Snapp, 458 U.S. at 607; see also People by Abrams v. 11
Cornwell Co., 695 F.2d 34, 38–39 (2d Cir. 1982) (materially same), vacated in part on
other grounds on rehearing, 718 F.2d 22 (2d Cir. 1983). There are no “definitive
limits on the proportion of the population of the State that must be adversely
affected by the challenged behavior.” Snapp, 458 U.S. at 607; see also New York v.
Peter & John’s Pump House, Inc., 914 F. Supp. 809, 812 (N.D.N.Y. 1996) (“There is
no numerical talisman to establish parens patriae standing.” (Pooler, District
Judge)).
The district court, in adopting the R&R, added its own gloss to the
substantial-segment standard. Based on its review of 11 Cornwell Co. and district
court caselaw in this Circuit, the court concluded that a state suing in parens
patriae must establish a “discriminatory conduct, policy, or practice” that is “as a
matter of routine, . . . enforced against a member of the [targeted population].”
Joint App’x at 123; see also id. at 66 (R&R articulating the standard). According to

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the adopted R&R, the OAG attempted to allege that the School District had a
policy or practice of ignoring student “complain[t]s about gender-based
harassment and sexual assault.” Id. at 67. But the inference that the School
District had such a policy or practice was implausible, the R&R continued,
because the OAG sought to base that inference on the victimization of four
students whose cases were factually distinct from one another with no indication
of broader trends or effects. Because “more must be alleged than injury to an
identifiable group of individual [students],” id. at 67 (quoting Snapp, 458 U.S. at
607), the R&R recommended dismissal for lack of parens patriae standing. The
district judge adopted the recommendation and its underlying reasoning. See id.
135–36.
We disagree. The controlling authority in this Circuit—11 Cornwell Co.—
nowhere states or even suggests that a defendant’s challenged conduct must
amount to a policy or practice enforced against a target population to satisfy the
substantial-segment prong of the parens patriae test. In that case, a state agency
had intended to purchase a piece of real estate and transform it into an assisted-
living facility for eight to ten mentally disabled adults. To thwart the project, a
group of neighbors conspired to purchase the property and refuse to sell it to the

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
23
state. See 695 F.2d at 37–38. The state sued in parens patriae; the defendants
moved to dismiss. The district court denied the motion, holding that the
“representation of mentally disabled persons is the paradigm case for parens
patriae standing.” New York v. 11 Cornwell Co., 508 F. Supp. 273, 277 (E.D.N.Y.
1981). On appeal, we concluded that the state had pleaded sufficient facts to
establish parens patriae standing. The state had pleaded—and we treated as true
for the purpose of reviewing an appeal from a motion to dismiss—that a
substantial segment of the population had been affected by the single
discriminatory act of refusing to sell the property at issue to the state. See 695
F.2d at 38–39. That alleged act alone affected at least five different populations,
either directly or indirectly. First, refusing to sell the property to the state
prevented “eight to ten moderately [disabled] adults plus two 24-hour
‘houseparents’” from living at the intended home. Id. at 39. Second, “any
number of [disabled] persons” would have been prevented from “receiv[ing]
rehabilitation” in the future. Id. Third, the alleged discriminatory act would
have burdened the state with “the cost of keeping more people in institutions.”
Id. Fourth, all disabled individuals then living in state institutions would have
been forced “to live in more crowded surroundings.” Id. Finally, “[b]oth [the

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
24
disabled] persons and community residents”—including the alleged
discriminators—would have been “deprived of being able to live in integrated
communities.” Id.; see also Snapp, 458 U.S. at 609 (recognizing “the political,
social, and moral damage of discrimination” on a substantial segment of the state
even though the tangible effects of a discriminatory act are limited). None of
these variegated effects—economic and social, direct and indirect—on different
populations flowed from an alleged policy, practice, or any routine or repeated
conduct. A single act sufficed to establish parens patriae standing.
Under the law of this Circuit, then, a state seeking to bring suit in parens
patriae need not plead, nor later prove, a policy or practice, or any repeat conduct
routinely aimed at a single target population. A single challenged act by the
defendant may satisfy the substantial-segment prong, so long as that action
meets Snapp’s requirements of showing sufficient “injury to an identifiable group
of individual[s]” and “indirect effects of the injury” beyond that group. Snapp,
458 U.S. at 607.4 These indirect effects can vary and need not all fall on the same
4 Of course, establishing a discriminatory policy or practice may be one way to satisfy the
substantial-segment prong of parens patriae standing. Today, we conclude only that establishing
such a policy is not required. The district court cases discussed in the R&R and the district
judge’s adoption of the R&R do not suggest otherwise. Two of the cited cases never mention a
policy or practice and concluded that the substantial-segment prong was satisfied based on no
more than several isolated acts. See Support Ministries for Persons with AIDS, Inc. v. Vill. of

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
25
group. In determining whether those effects “give the State standing to sue as
parens patriae,” courts may consider “whether the injury is one that the State, if it
could, would likely attempt to address through its sovereign lawmaking
powers,” Snapp, 458 U.S. at 607, and whether the injury “carr[ies] a universal
sting,” id. at 609.
Waterford, 799 F. Supp. 272, 275–77 (N.D.N.Y. 1992) (holding that a zoning appeals board’s
single denial of a permit to create a residence for homeless persons with AIDS immediately
affected fifteen would-be residents, “similar [persons with AIDS] in months and years to come,
as well as the members of the community itself, including the very neighbors who rallied
against the Support Ministries’ project,” and the state’s economy); New York v. Mid Hudson Med.
Grp., 877 F. Supp. 143, 145, 148 (S.D.N.Y. 1995) (concluding that a hospital’s denial of
interpretive services to a single deaf patient affected substantial segment of the population
because “[t]he effects of Mid Hudson [Hospital]’s alleged discrimination” extended to all of “its
seven to ten deaf patients” and indeed “threaten[ed] all hearing impaired citizens and perhaps
disabled citizens throughout New York”). In two other cases, the plaintiffs alleged a policy or
practice. See New York v. Peter & John’s Pump House, Inc., 914 F. Supp. 809, 811 (N.D.N.Y. 1996)
(alleging “a practice and policy of refusing admission [to a night club] to African Americans
because of their race or color”); New York v. Utica City Sch. Dist., 177 F. Supp. 3d 739, 744
(N.D.N.Y. 2016) (alleging a “policy and practice” of “mandatory ‘English as a second language’
. . . program for immigrant students aged 17–20” seeking to enroll at Proctor High School,
“regardless of whether or not the student expressed a wish to attend ‘regular’ high school”).
But neither district court decision suggested that such a pleading was necessary to survive a
motion to dismiss. Finally, we are unpersuaded by New York v. Holiday Inns, Inc., 656 F. Supp.
675 (W.D.N.Y. 1984), in which the plaintiffs alleged only a past practice of laying off older
workers to replace them with younger ones, and the district court dismissed the case because
the pleadings did not give rise to a plausible inference that the practice would continue to be
applied to older workers in the future. See id. at 676–77. Holiday Inns provided no reasoning to
support its conclusion.
And of course, we take no position on what is required by the other prongs of parens patriae
standing—asserting a quasi-sovereign interest and an inability for individual plaintiffs to obtain
complete relief.

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New York v. Niagara-Wheatfield Central School District
26
2. The OAG’s allegations satisfy the substantial-segment prong of parens
patriae standing.
We further conclude that the New York Attorney General has pleaded
sufficient facts to satisfy the substantial-segment prong of parens patriae standing
here. As with the alleged discriminatory act in 11 Cornwell Co., the School
District’s conduct as alleged here would have had direct and indirect harmful
effects on different groups which, in combination, constitute a substantial
segment of New York’s population.
First among those groups are the four students allegedly subjected to their
peers’ sexual assault and harassment, gender-based violence, and bullying—“an
identifiable group of individual[s]” injured by the School District’s alleged
inaction. Snapp, 458 U.S. at 607. The School District’s failure to respond to the
students’ complaints may very well have left them with the knowledge that they
would not be protected by the School District, which led to such tangible effects
as a panic attack (T.G., Am. Compl. ¶ 23), years of counseling (L.W., Am. Compl.
¶ 68), missing school or practice (T.G., Am. Compl. ¶¶ 29, 31; C.C., Am. Compl.
¶ 50), transferring to a private school (A.S., Am. Compl. ¶ 59), and dropping out
of school altogether (C.C., Am. Compl. ¶ 51). Cf. 11 Cornwell Co., 695 F.2d at 39

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New York v. Niagara-Wheatfield Central School District
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(discussing the direct effect felt by the eight to ten disabled individuals and their
caretakers from the residents’ alleged discriminatory act).
Second, and also directly affected, are dozens of other students whose
similar complaints were also ignored by the School District. The School District
protests that this allegation is conclusory, but we are not persuaded. We are not
here deciding the merits, i.e. whether the OAG has plausibly alleged a Title IX or
negligent-supervision claim. Rather, we are determining whether the OAG has
met its pleading burden to plausibly allege the basis for the substantial-segment
prong of parens patriae standing. In this context, “[t]he Attorney General’s use of
a small group of ‘aggrieved persons’ as exemplars for a larger class is neither
new nor objectionable.” New York v. Mid Hudson Med. Grp., 877 F. Supp. 143, 147
(S.D.N.Y. 1995).
As alleged by the OAG, the indirect effects of the alleged injury, too, were
widely felt. First, they were felt by the parents of the four students who were left
with the understanding that the School District would not protect their children
and therefore were required to contend with the psychological and financial
burdens of dealing with the effects the School District’s inaction had on their
children. Second, and as alleged, there are victims of “future harassment,” Am.

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New York v. Niagara-Wheatfield Central School District
28
Compl. ¶ 3, and “future sexual assaults,” id. ¶ 70. This prospective group, too,
will not be protected by the School District if it continues to act as the Complaint
alleges it has historically done. Cf. 11 Cornwell Co., 695 F.2d at 39 (observing that
defendants’ discriminatory act prevented “any number of [disabled] persons”
from “receiv[ing] rehabilitation” in the future). The Complaint alleges a repeated
failure by several School District officials—including a counselor, an acting
principal, several principals, and the superintendent, see, e.g., Am. Compl. ¶¶ 23,
28, 44, 56–59, 61–63, 66—to respond to student and parent requests to remedy the
victimization some students suffered at the hands of other students. And the
School District ignored the repeated offer of free educational programming on
domestic and dating violence by the YWCA’s Rape Crisis Program,
programming allegedly received by every other school district in Niagara
County. These alleged failures support the plausible inference that the School
District’s inaction is likely to continue and affect additional future victims.
Third, the School District’s failures indirectly affect both its entire student
body and the students’ parents in several ways. One such alleged effect was that
the School District’s inaction permitted the harassing behavior to spread from a
handful of perpetrators to a significant number. In T.G.’s case, her rape by E.D.

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
29
was followed by other students sending her a picture of E.D. with the caption
“your boyfriend,” Am. Compl. ¶ 26, sending T.G. text messages suggesting she
had enjoyed what E.D. had done to her, and telling T.G. to “watch her back,” id.
¶ 28. In A.S.’s case, five High School sophomore girls displayed a poster telling
A.S. “We don’t want you” at a school-wide pep rally. Id. ¶ 54. A video
recording collecting remarks that were insulting to A.S. was distributed among
the High School students. And in both C.C.’s and L.W.’s cases, their gender-
based harassment was perpetrated by groups of students. In short, for each of
the four students, the OAG’s allegations show how the School District’s failure to
act allowed more and more students to turn into harassers.
The broader alleged effects on the students in the School District—and,
indeed, their parents—do not stop there. 11 Cornwell Co. and Snapp explicitly
recognized the harmful effects wrought on a community by the alleged
discriminatory acts of a small subset of its members. See 11 Cornwell Co., 695 F.2d
at 39 (“Both [the disabled] persons and community residents”—including the
alleged discriminators—would be “deprived of being able to live in integrated
communities.”); Snapp, 458 U.S. at 609 (concluding that, despite limited economic
impact, “[d]eliberate efforts to stigmatize the labor force as inferior carry a

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
30
universal sting” (internal quotation marks omitted)). Here, the Complaint
explicitly alleges how, after the School District’s inaction in response to T.G.’s
requests to be kept separate from E.D. became more widely known, T.G.’s
mother received over one hundred messages on social media from concerned
parents, and how the students of the High School staged a related walkout. One
student at the walkout allegedly confronted the principal with the rhetorical
question whether “[a]llowing all of us girls to be in danger is civil?” Am. Compl.
¶ 39. Because of this allegedly widely-known incident, students had to contend
with the fear that, if something comparable happened to them, the School
District would also leave them unprotected. In sum, the effects on the student
and parent community flowing from the School District’s alleged inaction are at
least as palpable and pervasive as the alleged conspiracy to deny housing to the
disabled addressed by this Court in 11 Cornwell Co.
We therefore conclude that the OAG has pleaded sufficient facts to
support the inference that a substantial segment of the state’s population has
been affected by the School District’s challenged conduct. Because the parties
agree that the OAG has made the other two showings required for parens patriae
standing—pleading a quasi-sovereign interest and an inability by individual

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
31
plaintiffs to obtain complete relief, see Griepp, 991 F.3d at 131—we reverse the
district court’s judgment dismissing this case for lack of parens patriae standing.
II. Merits
The School District argues that, even if we conclude that the district court
erred in holding that the OAG lacked parens patriae standing, we should
nonetheless affirm on the alternative basis that the Complaint fails to state a
plausible Title IX claim.
We decline that invitation. While “[w]e may affirm on any ground with
support in the record, including grounds upon which the district court did not
rely,” Jusino v. Fed’n of Cath. Tchrs., Inc., 54 F.4th 95, 100 (2d Cir. 2022) (internal
quotation marks and citation omitted), cert. denied, 143 S. Ct. 1056 (2023), “this
Court’s usual practice [is] to allow the district court to address arguments in the
first instance,” Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 97 (2d Cir. 2015)
(citation omitted); see also Dardana Ltd. v. Yuganskneftegaz, 317 F.3d 202, 208 (2d
Cir. 2003) (same); Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir. 2000) (same).
Indeed, we have previously declined to reach the merits of a motion to dismiss
for failure to state a claim where, as here, the appellee advanced the argument as
an alternative ground for affirming dismissal. See, e.g., Absolute Activist Value

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No. 22-2178-cv
New York v. Niagara-Wheatfield Central School District
32
Master Fund Ltd. v. Ficeto, 677 F.3d 60, 71 (2d Cir. 2012) (remanding to consider
merits of motion to dismiss in first instance); Henriquez v. Starwood Hotel Resorts
Worldwide Inc., 549 F. App’x 37, 38 (2d Cir. 2014) (summary order) (same).
Moreover, the district court here has the benefit of an R&R providing a
recommendation on how to resolve this question. We therefore see no reason to
deviate from our preferred practice.
III. Leave to Amend the Complaint
Because we have determined that the district court should assess the
merits of the OAG’s allegations in the first instance, the issue of whether the
court abused its discretion in denying leave to amend is moot. Of course, the
issue may arise again should the district court dismiss the Complaint on the
merits, without permitting further leave to amend, and we may decide it in the
event that this case reaches us again on appeal.
CONCLUSION
We have considered the parties’ remaining arguments on appeal and
conclude that they are without merit. For the foregoing reasons, we REVERSE
the district court’s judgment dismissing the case for lack of parens patriae
standing and REMAND for further proceedings consistent with this opinion.

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Page 1 of 3
New York v. Niagara-Wheatfield Central School District, No. 22-2178-cv
JOSÉ A. C ABRANES, Circuit Judge, concurring dubitante:
States ordinarily cannot prosecute lawsuits on behalf of their citizens. And for
good reason: Article III’s requirement that plaintiffs have a “personal stake in the
case”1 prevents States from picking and choosing certain parties behind whom to
throw their weight in court. Under the doctrine of parens patriae, however, a State
may under certain circumstances assert a “quasi-sovereign” interest on behalf of a
“sufficiently substantial segment of its population.”2 But this doesn’t change the
fact that “[i]nterests of private parties are obviously not in themselves sovereign
interests, and they do not become such simply by virtue of the State’s aiding in
their achievement.”3 In other words, parens patriae standing is the exception, not
the rule.
The last Supreme Court case to directly address parens patriae requirements—
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez—dates to 1982. It is common
ground that a State must assert a “quasi-sovereign interest” for parens patriae
standing. But what such an interest may be, and how it is to be evaluated, is
controversial. The Snapp Court declined to provide a definition, instead opting for
the concept to be elucidated on a case-by-case basis.4
This I-know-it-when-I-see-it approach5 is an invitation to confusion, and it
should be no surprise that it has indeed sown some confusion among the Courts
1 U.S. CONST . art. III, § 2; TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quotation marks
omitted).
2 Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).
3 Id. at 602.
4 See id. at 601-02 (“[A] ‘quasi-sovereign’ interest . . . is a judicial construct that does not lend
itself to a simple or exact definition. . . . The vagueness of this concept can only be filled in by
turning to individual cases.”).
5 Famously enunciated by Justice Potter Stewart in an obscenity case of 1964. See Jacobellis v.
Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

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Page 2 of 3
of Appeals. Some consider a quasi-sovereign interest sufficient to confer parens
patriae standing, and treat the other factors noted by the Snapp Court as
considerations informing whether such an interest exists.6 Others require a quasi-
sovereign interest in addition to the other factors, which they regard as
independent prongs of a multi-factor test.7 Still others, including our own, have
introduced considerations not set forth in Snapp.8 Granting certiorari would
provide an opportunity to clarify the contours of this important but perplexing
area of the law.
The doctrinal muddle has real consequences. Relaxing parens patriae standing
requirements allows States to bring headline-grabbing suits ostensibly on behalf
of their citizens but without satisfying the “additional hurdle” of parens patriae
standing.9 This prejudices parties who must now face off not only against their
6 Broselow v. Fisher, 319 F.3d 605, 609 (3d Cir. 2003); AU Optronics Corp. v. South Carolina, 699
F.3d 385, 388 n.5 (4th Cir. 2012); Harrison v. Jefferson Par. Sch. Bd., 78 F.4th 765, 772 (5th Cir. 2023);
Chapman v. Tristar Prods., Inc., 940 F.3d 299, 305 (6th Cir. 2019); Lynch v. Nat’l Prescription Adm’rs,
Inc., 787 F.3d 868, 873 (8th Cir. 2015); State ex rel. Sullivan v. Lujan, 969 F.2d 877, 883 (10th Cir.
1992).
7 See Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011) (three parens patriae
requirements: “the sovereign [must] allege[] injury to a sufficiently substantial segment of its
population, articulate[] an interest apart from the interests of particular private parties, and
express[] a quasi-sovereign interest”); see also Missouri ex rel. Koster v. Harris, 847 F.3d 646, 651 n.1
(9th Cir. 2017) (“It is unclear whether ‘substantial segment of the population’ and ‘interest apart
from the interest of particular private parties’ are separate elements of standing.”).
8 See People by Abrams v. 11 Cornwell Co., 695 F.2d 34, 40 (2d Cir. 1982) (“Parens patriae standing
also requires a finding that individuals could not obtain complete relief through a private suit.”),
vacated in part on other grounds, 718 F.2d 22 (2d Cir. 1983); Missouri ex rel. Koster v. Harris, 847 F.3d
646, 652 (9th Cir. 2017) (same). This is arguably not the only problem with 11 Cornwell, which in
relevant part relies on little beyond a controversial law review article to distort our parens patriae
injury analysis. See 11 Cornwell, 695 F.2d at 39 (citing Herbert Wechsler, Toward Neutral Principles
of Constitutional Law, 73 H ARV. L. REV. 1, 33-34 (1959)).
9 Massachusetts v. EPA, 549 U.S. 497, 538 (2007) (Roberts, C.J., dissenting).

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Page 3 of 3
rightful opponent, but also the formidable legal machinery of a State. And it
encourages States to sue rather than act through their other powers. This case is
illustrative. New York alleges deliberate indifference and negligent supervision
against Niagara-Wheatfield Central School District—a district of six schools and
more than three thousand students—on the basis of four unrelated incidents
across different schools, years, and grades.10 This is a quintessential instance of a
State having no “interest apart from the interests of particular private parties” and
thus no quasi-sovereign interest.11 Allowing the State to insert itself would usurp
“the autonomy of those who are most directly affected,” to “decide whether and
how to challenge the defendant’s action.”12 I agree with the experienced
Magistrate Judge (Leslie G. Foschio, Magistrate Judge) and District Judge (John L.
Sinatra, Judge) that New York lacks parens patriae standing. But I cannot be
confident in this conclusion because the standard is uncertain. So I concur
dubitante, because I believe that our confused parens patriae case law warrants
clarification or correction by the Supreme Court.
10 JA11-18. The Complaint also mentions that the District saw “at least thirty incidents of
sexual assault, harassment, or gender-based bullying in the last few years.” JA19. Without any
supporting details, however, this allegation does not establish a cognizable legal claim against
the District, much less parens patriae standing for the State. Relatedly, it is unclear whether the
State has alleged a plausible Title IX claim for deliberate indifference in light of the incidents’
dissimilarities and the high standard for deliberate indifference set forth in Davis v. Monroe County
Board of Education, 526 U.S. 629 (1999). Neither my colleagues nor I take a position on this question,
however, leaving the District Court to consider the merits on remand.
11 Snapp, 458 U.S. at 602; accord Harrison v. Jefferson Par. Sch. Bd., 78 F.4th 765, 773 (5th Cir. 2023)
(rejecting parens patriae standing for Louisiana, whose asserted interest in a discrimination suit
against a school district was “wholly derivative of the interests of [the district’s] students”).
12 FDA v. All. for Hippocratic Med., 602 U.S. 367, 379-80 (2024) (quotation marks omitted).

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