Bloomberg v. N.Y.C. Dep't of Educ.

410 F.Supp.3d 608

Jill BLOOMBERG, Plaintiff,

v.The NEW YORK CITY DEPARTMENT OF EDUCATION and Carmen Farina, Defendants.

17 Civ. 3136 (PGG)

United States District Court, S.D. New York.

Signed September 24, 2019

Ria Julien, Jeanne Ellen Mirer, Mirer Mazzocchi Schalet & Julien, PLLC, New York, NY, for Plaintiff.

Andrea Mary O'Connor, Joseph Anci, William Andrew Grey, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendants.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.:

Plaintiff Jill Bloomberg – a high school principal – brings this action against the New York City Department of Education (the "DOE") and its chancellor. Bloomberg claims that a DOE investigation of her conduct – purportedly premised on her violation of a DOE regulation governing DOE personnel's activity on behalf of political organizations – was retaliatory and in violation of her First Amendment rights. Bloomberg further contends that the DOE regulation on which the investigation was based does not apply to her alleged conduct and, in any event, is unconstitutionally vague. The Amended Complaint asserts claims for retaliation in violation of the First Amendment, Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. §§ 2000d-1 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Bloomberg also challenges the DOE regulation on Due Process grounds. (Am. Cmplt. (Dkt. No. 39))

Defendants have moved to dismiss Plaintiff's First Amendment and Title VI claims, and her Due Process claim. (Mot. (Dkt. No. 77)) Plaintiff has cross-moved for partial judgment on the pleadings seeking, inter alia, a declaration as to the DOE regulation's scope. (Cross-Mot. (Dkt. No. 81); Pltf. Br. (Dkt. No. 82))

For the reasons stated below, Defendants' motion to dismiss will be granted in its entirety, and Plaintiff's cross-motion will be terminated as withdrawn.

BACKGROUND

I. FACTS

Plaintiff Bloomberg is the principal of Park Slope Collegiate ("PSC"), a secondary school in Park Slope, Brooklyn. (Am. Cmplt. (Dkt. No. 39) ¶¶ 1, 4, 21, 28) Plaintiff has served as the principal of PSC since 2004, and has been employed by the DOE since 1998. (Id. ¶¶ 9-10)

PSC is located at a facility known as the "John Jay Campus," The John Jay Campus houses PSC and three other schools: the Secondary School for Journalism ("Journalism"); The John Jay School for Law ("Law"); and Millennium Brooklyn High School ("Millennium"). (Id. ¶ 4; Bloomberg Aff., Ex. 3 (Dkt. No. 10-3)) Millennium joined the John Jay Campus in 2011. (Am. Cmplt. (Dkt. No. 39) ¶¶ 33, 36; Bloomberg Aff., Ex. 3 (Dkt. No. 10-3)) PSC's student body is 85 percent Black or Latino, while Millennium has a "high percentage" of white students, although the majority of the student body is Black or Latino.¹ (Am. Cmplt. (Dkt. No. 39) ¶ 56) Park Slope – where the schools are located – is "an increasingly affluent neighborhood ... with a majority [w]hite population." (Id. ¶ 30)

"Since the outset of her tenure at PSC," Plaintiff "has encouraged desegregation of the school and opposed measures that reinforce and perpetuate de facto segregation." For example, Bloomberg opposed the addition of Millennium to the John Jay Campus. (Id. ¶ 32; see id. ¶¶ 33-52)

A. Plaintiff's January 10, 2017 Email

The Campus operates two sports programs. One program is for students at PSC, Journalism, Law, and a neighboring school – Brooklyn High School of the Arts ("Arts") – and the second program is for students at Millennium and Millennium-Manhattan. (Id. ¶ 56; Bloomberg Aff., Ex. 3 (Dkt. No. 10-3))

According to Plaintiff, "[i]t is part of a principal's ... regular job duties to request sports teams of the [Public School Athletic League ("PSAL") ]. For years[,] principals and coaches in the John Jay Program had been making these formal requests but [their] requests were regularly rejected." (Bloomberg Supp. Aff. (Dkt. No. 21) ¶ 5)

On January 10, 2017, Plaintiff sent the following email to Eric Goldstein, the chief executive officer of the DOE sports programs, and Michael Prayor, the District Superintendent,² concerning sports programs at the John Jay Campus:

Dear CEO Goldstein and Superintendent Prayor,

I am writing to request your assistance in uniting the PSAL sports teams on the John Jay Campus in Brooklyn. Our campus houses [Journalism, Law, Millennium, and PSC]. Currently, the John Jay Campus Schools PSAL teams include students from [Journalism, Law, PSC and students from [Arts] on Dean Street. [Millennium] students belong to the Millennium High School PSAL teams that also include students from [Millennium-Manhattan], These separate sports programs, both of which practice and compete at the John Jay Campus ( [Millennium-Manhattan] does not have a gym) offer vastly unequal opportunities to students.

(Bloomberg Aff., Ex. 3 (Dkt. No. 10-3))

The email includes the following chart:

  School or Program               Number of      Enrollment        % Black & Hispanic
                                  PSAL Teams     (SY 15-16)
  [Law]                                          357               90.4
  [Journalism]                                   222               87.0
  PSC                                            356 (HS only)     85
  [Arts]                                         924               90.7
  John Jay Campus PSAL 9 1859
  [Millennium]                                   620               51.5
  [Millennium-Manhattan]                         641               25.2
  Millennium High School PSAL 17 1261

(Id. (emphasis in original)) The email goes on to state:

Prior to this school year, the John Jay Campus had only four teams. We were recently granted girls' cross-county, and girls' and boys' indoor and outdoor track[,] though we requested and were denied girls' and boys' swimming, girls' softball, flag football, double-dutch and JV volleyball as well as boys' volleyball and soccer. Meanwhile, the number of [Millennium-Manhattan] teams continues to grow.

The Principals of the schools at the John Jay Campus meet weekly to manage our shared campus. From the time that [Millennium] joined our campus community in 2011, I have argued that they should be a part of our PSAL team. Nonetheless, they opted to join with [Millennium-Manhattan] (which opened in 2002) and, over the years, have been granted 17 teams. In spite of repeated requests to unite the teams and open up the opportunities that exist on the campus, but that are denied to students from three of the four schools, [Millennium] maintains its exclusive alliance with [Millennium-Manhattan].

The PTA at PSC has also raised these inequities with Executive Director Donald Douglas but have heard nothing in response.

The benefits of these separate and unequal programs to the students at [Millennium] and [Millennium-Manhattan] do not justify the disadvantages imposed on the students from [Arts, Law, Journalism,] and PSC. Nor do whatever logistical difficulties may arise from uniting them. The students at all six schools are equally deserving of opportunities to participate in extracurricular sports and it is the responsibility of the DOE and PSAL to facilitate that equity.

I look forward to hearing from you soon.

(Id. )

According to Plaintiff, her "primary protest" in this email "was the segregation of the programs based on race." (Am. Cmplt. (Dkt. No. 39) ¶ 57; see also id. ¶ 56 (the January 10, 2017 email "accus[ed] the DOE of race discrimination and segregation within the sports programs in her building"); Bloomberg Supp. Aff. (Dkt. No. 21) ¶ 9 ("The Complaint I made to PSAL was designed to address what I believe was a violation of the law...."))³

According to Plaintiff, she "received no meaningful response" to her January 10, 2017 email. (Id. ¶ 58) As a result, PSC's PTA organized a February 13, 2017 "leafleting action," distributing flyers containing language from the January 10, 2017 email on the sidewalk outside of the John Jay Campus building "to inform the community about the race discrimination and segregation that [P]laintiff had complained about." (Id. ¶ 59)

On March 3, 2017, Donald Douglas – the executive director of the PSAL, who had been copied on Plaintiff's January 10, 2017 email – met with the principals of the schools located at the John Jay Campus. Although he "refused to combine the programs between the PSC and other John Jay programs with the programs at Millennium," he did "grant[ ] John Jay an additional five teams," and asked Plaintiff "if that made [her] happy." (Bloomberg Supp. Aff. (Dkt. No. 21) ¶¶ 7, 10)

Plaintiff describes her January 10, 2017 email as a "Title VI Complaint." (Am. Cmplt. (Dkt. No, 39) ¶ 59) Plaintiff further alleges, "[u]pon information and belief," that "all Title VI complaints made to DOE officials are immediately referred to the Office of Civil Rights (‘OCR’)." (Id. ¶ 60) Accordingly, "[b]ased on DOE policy and upon information and belief, [P]laintiff's Title VI Complaint ... was referred to OCR by at least on or about January 15, 2017." (Id. ¶ 61) Robin Greenfield – DOE's Executive Deputy Counsel for Employment and General Practice – is "directly responsible for responding to OCR complaints on behalf of DOE." (Id. ¶ 60)⁴

B. The OSI Investigation

On May 12, 2016 – eight months before Plaintiff's January 10, 2017 email – the Special Commissioner of Investigation for the New York City School District ("SCI") received an anonymous complaint concerning Plaintiff. SCI is independent of DOE, and its "sole function" "is to investigate allegations of corruption, conflicts of interest, unethical conduct[,] and other misconduct in the DOE." (Guerra Decl. (Dkt. No. 13) ¶¶ 6, 11; see also Am. Cmplt. (Dkt. No. 39) ¶¶ 69, 87) The anonymous complaint alleged that Plaintiff "was a member of a political organization known as the [Progressive] Labor Party (‘PLP’) and was actively recruiting students into the organization and inviting them to participate in organizational activities including marches for her...