Defending Education Files En Banc Petition in Croton-Harmon Union Free School District Lawsuit

RULE 40 STATEMENT

This circuit—and only this circuit—holds that 42 U.S.C. §1983 bans associational standing. In other words, membership associations cannot sue on behalf of their members when state actors violate the Constitution. That rule is an accident of history: It comes from Aguayo v. Richardson, a circuit precedent that predates associational standing and guessed wrong about how it would work. 473 F.2d 1090, 1099-100 (2d Cir. 1973). Later panels followed Aguayo with little analysis.

No one thinks the rule from Aguayo is right. If associations can’t sue under §1983, then countless Supreme Court decisions are wrongly decided—nearly one every Term. E.g., Moody v. Net Choice, 603 U.S. 707 (2024). No other circuit would entertain the notion that §1983 bans associational standing; the argument is so weak that defendants don’t even try it in other courts. Cf. Centro de la Comunidad Hispana v. Oyster Bay, 868 F.3d 104, 123 (2d Cir. 2017) (Jacobs, J., dissenting). And it’s no exaggeration to say that, if the full Court considered this question anew, the notion that §1983 forecloses associational standing would probably get zero votes.

Though this circuit made do under Aguayo for some time, that compromise lacked stability and recently ended. Panels tried to make up for Aguayo’s error by letting associations assert “tenuous” theories of standing based on supposed diversions of resources. Id. But the Supreme Court severely curtailed, if not overruled, that theory in FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 394-96 (2024). If this Court maintains Aguayo, associations will be left with no way to prove standing in this circuit—an unfortunate result, since associational standing is “advantageous both to the individuals represented and to the judicial system as a whole.” UAW v. Brock, 477 U.S. 274, 289 (1986). Without the help of these “representative[s],” the “constitutional rights” of many—especially the unpopular and underresourced—“could not be effectively vindicated.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958).

Aguayo should be overruled—swiftly and now. This case presents an ideal vehicle because petitioner had the dismissal of its complaint affirmed solely under Aguayo. And while overruling Aguayo would be a good use of the full Court’s resources, this Court could do so without full briefing and argument. Either the panel or the full Court could “circulat[e]” an opinion overruling Aguayo to “all active members of this Court” and, after “receiv[ing] no objection,” publish the opinion and reverse. United States v. Smith, 949 F.3d 60, 65 (2d Cir. 2020); Shipping Corp. of India v. Jaldhi Overseas Pte Ltd., 585 F.3d
58, 67 (2d Cir. 2009). That course would also spare the parties from having to seek, and the Supreme Court from having to reject, Aguayo on certiorari. No matter the procedure, rehearing should be granted and Agauyo should be overruled.

Background

The Croton-Harmon school district has aggressive speech codes. These vague policies against “hate speech,” “harassment,” “incivility,” and the like impose viewpoint-based restrictions on students’ speech, both on and off campus, on all sorts of topics. See SDNY-Doc.1 ¶¶38-83. Defending Education, a membership association that protects the rights of K-12 students, challenges those speech codes. It represents at least three members whose children attend school in the district. SDNY-Doc.1 ¶¶84-150. Those members’ children have unpopular views that they wish to share but refrain because their speech is arguably covered by the district’s policies. SDNY-Doc.1 ¶¶98-106, ¶¶119-31, ¶¶141-47.1

DE filed a lawsuit under §1983. Though it explained why its constitutional claims have merit, DE acknowledged that its case had to be dismissed under this Court’s decisions in Do No Harm v. Pfizer, 96 F.4th 106 (2d Cir. 2024) and Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973). SDNY-Doc.6-1. Under Pfizer, DE lacked standing because it referred to its members only with pseudonyms. 96 F.4th at 118-19. And under Aguayo, DE lacked standing because associations cannot sue under §1983. 473 F.2d at 1099. The district court dismissed the case under Pfizer and Aguayo, allowing PDE to “go up to the Second Circuit.” SDNY-Doc.39 at 16:12-17; accord CA2-Doc.2.

On appeal, DE filed a petition for initial hearing en banc because the full Court’s intervention was required to overturn Pfizer and Aguayo. CA2-Doc.18.1. The Court denied that petition. CA2-Doc.20.1. Meanwhile, the panel that decided Pfizer vacated its opinion. Do No Harm v. Pfizer, 126 F.4th 109, 123 (2d Cir. 2025). In a revised opinion, the Pfizer court held that an association’s use of pseudonyms does not necessarily require the dismissal of its complaint, stressing “this Court’s decision in Building and construction Trades Council of Buffalo, New York and Vicinity v. Downtown Development, Inc., 448 F.3d 138 (2d Cir. 2006), in which we concluded that an organizational plaintiff need not identify specific injured members by name at the pleading stage.” 126 F.4th at 122 n.7. No longer constrained by Pfizer, the panel here affirmed the dismissal of DE’s complaint only under Aguayo. See CA2-Doc.44.1.

REASONS FOR GRANTING THE PETITION

Associational standing is a well-established and important tool for vindicating federally protected civil rights. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 341-43 (1977). Every circuit (except for this one) allows associations to bring §1983 claims on behalf of their members, and the Supreme Court has repeatedly considered cases involving such claims. This Court stands alone in refusing to permit associational claims under §1983. It should grant this petition to overrule that line of circuit precedent.

---