Massapequa's appeal was argued Wednesday in the Second Circuit. The judges never got to the mascot. They didn't need to.
On Wednesday morning, in Courtroom 1703 of the Thurgood Marshall Courthouse in Manhattan, the Massapequa school board's fight to keep the Chiefs mascot reached the U.S. Court of Appeals for the Second Circuit. The argument lasted 38 minutes. The panel — Judges Walker, Lynch, and Bianco — reserved its decision.
Here is the most important thing about those 38 minutes: the judges spent almost none of them on the mascot, the ban, or whether New York's rule is constitutional. They spent them on two smaller questions that come first. Can a school district sue the state that created it? And can an outside advocacy group manufacture a legal claim out of a contract it signed with the district after its first lawsuit was thrown out?
If the answers are no, nothing else in the case matters. That is where the argument lived, and that is where it will likely be decided.
The road here. New York's Board of Regents adopted the mascot rule in 2023. Massapequa sued in federal court. Judge Brodie dismissed the case in March 2025, holding that the district — a creation of the state — lacks the legal capacity to sue its creator. The board rewrote its complaint and tried again, this time alongside the Native American Guardians Association (NAGA), which had signed a licensing agreement with the district in May 2025. Judge Bulsara dismissed that case too, in November 2025. He called the NAGA agreement "a contract in name only" and wrote that "[i]t does nothing." The board and NAGA appealed. The legal bills for the mascot cases alone stand at $240,482, paid from the district budget.
The board’s argument. Oliver Roberts, arguing for the district, opened with what he called the district's dilemma. Defy the state rule, and the district faces state sanctions — loss of funding, removal of officials. Comply with it, and the district faces federal consequences: the U.S. Department of Education has found that New York's policy violates federal civil rights law, and a district that complies, he argued, invites the same treatment. Caught between two governments, the district must be allowed into court.
The panel pushed on the federal half of that dilemma for the first several minutes and did not let go. Your client says it will not comply unless a court orders it to, a judge observed, and the federal government supports its position — so if the case is dismissed, “nothing is going to happen to you, right?” The presiding judge then handed Roberts a simpler version of his own argument, drawn from a 2019 case called Tong: a government body that is the direct target of a regulation, facing punishment for disobeying it, may not need the federal threat at all. Roberts accepted the help. “Under Tong alone, that’s sufficient.”
Asked what supported his remaining claims, Roberts pointed to the district's agreement with NAGA. A judge cut in: "Oh, really? Really? That's what you think is your best argument?" The judge steered him back to the threat of state enforcement — the ground the panel kept offering him as the stronger one.
The harder problem came when the panel turned to capacity — the doctrine that a school district, as an arm of the state, cannot sue the state at all. Roberts argued that Tong carves out an exception when a district brings claims under federal law. Judge Lynch asked whether that proves too much: if a subdivision can sue its state whenever it frames the claim under the Constitution, what is left of the rule? Roberts had no clean boundary to offer. He pointed, again, to the federal Education Department's finding.
NAGA's argument. Chap Petersen, arguing for NAGA, had the morning's hardest assignment, and the panel identified it within seconds. "Set aside for a moment the contract," a judge began. "If you didn't have that contract, is there any argument available" that your clients have standing? Petersen's answer returned to the contract: the relationship, he said, "is memorialized by the contract." Pressed on the one individual plaintiff, he offered that the man is a New York resident. The judge: "He's not a member of that school district. He's got nothing to do with the school district." The plaintiff lives in Coxsackie, in Greene County. He has no child in Massapequa schools.
A judge then put the panel's view of the matter into a single sentence, about three minutes into Petersen's argument: "I understand the policy argument for why you think this is a bad regulation and I'm sympathetic to it, but I'm still trying to figure out how you can sort of bootstrap yourself into standing by a contract.”
The panel had already tested the contract theory with a hypothetical Petersen never answered. Suppose the ACLU disliked a state regulation that did not affect it or its members, a judge asked — could it gain standing by contracting with someone to go out and violate the regulation? "Well, Your Honor, I think that's oversimplifying our agreement," Petersen said. "We are an advocacy organization." The judge: "That's just like the ACLU so far." Petersen did not take up the analogy again. He moved on to his clients' mission.
Petersen filled much of the rest of his time with the case for the mascots themselves — NAGA's mission to "educate, don't eradicate," its members' trips to Massapequa events, the sincerity of its belief that these names honor Native people. The judges let him talk. They did not interrupt, because none of it answered the question they had asked.
The state's argument. The Attorney General's lawyer led with capacity, and told the panel, in terms, that it could stop there: the district's lack of capacity "forecloses all of Massapequa's claims," and "[t]he court does not need to address our standing arguments." His central claim was about which rule governs. Tong's exception, he argued, answered a federal rule about who may sue; this case runs on New York's capacity rule, and a state case called Clark holds that New York's rule has no exception for federal claims. On NAGA, he called the agreement "a transparent attempt to manufacture standing after the district court had dismissed their first complaint," and added a backstop: even if the agreement is a real contract, the mascot rule does not impair it, because the agreement's substance — educational programming — is something the rule does not restrict.
The rebuttals. Roberts used his rebuttal on his one distinction: Clark, he argued, was a Fourteenth Amendment case that never cited Tong. It did not save him. A judge put the structural point to him directly — a district suing the state is "like the civil division of the Justice Department suing the attorney general," because "you're just an arm of the Board of Regents" — and then reduced his position to its proposition: that federal constitutional law overrides a state's own rules about which of its subdivisions may sue. Roberts: “Yes, Your Honor. I believe that’s correct.”
Petersen's rebuttal ended with the presiding judge reading the NAGA agreement aloud from the bench — the annual meeting is the district's promise; the educational programming is the district's promise — and asking, "Where's the promise regarding educational programming from NAGA?" Petersen answered that the permission to use the logo is itself "a reciprocal promise." The judge: "I don't see anything reciprocal there." Petersen closed by returning to the cultural argument for the names themselves. No judge engaged it. The court thanked counsel and reserved decision.
What did not happen. Nobody — not any judge, not the state's lawyer — examined the foundation of the board's federal argument: the Education Department's new reading of Title VI, under which obeying New York's rule is itself discrimination. No court has upheld that reading. It was mentioned, assumed, and passed by, because the case can be decided without ever reaching it. Courts take the narrowest door out of a case when one is open. Capacity is that door.
Familiar ground. None of this was new to the district. Its lawsuits keep dying at the same door. In 2021, a state judge dismissed its mask-mandate case because the districts "failed to establish injury in fact." In early 2025, Judge Brodie dismissed the first mascot case on capacity. That fall, another state judge threw out the district's regionalization case on standing, and Judge Bulsara dismissed the second mascot case on capacity and standing together. Even the board president's own federal lawsuit — filed with free outside counsel — was dismissed for lack of standing this past June. The one exception is the state mascot case in Albany, where a judge reached the merits, and the board lost there too. So when the panel in Manhattan spent Wednesday morning on capacity and standing, it was not raising a technicality the board had never encountered. It was asking about the defect that has ended most of the board's litigation for five years — a defect the board knows well, and chose to carry into another appeal.
What comes next. There is no deadline. This court can dispose of the case in a short, unpublished order — as another panel did two months ago in Wantagh's near-identical appeal, which was dismissed on capacity grounds in a summary order — or it can write a published opinion settling the Tong-versus-Clark question, which would take longer. The honest window is weeks to several months. After a decision, the losing side has 45 days to ask the full court to rehear the case and 90 days to ask the U.S. Supreme Court to take it; NAGA's president has said publicly that the Supreme Court is the goal. Separately, the Regents are expected to vote on November 10 on repealing the rule's staff-clothing provision — a small piece of the regulation that played almost no role in Wednesday's argument and changes nothing about the ban itself.
One thing Wednesday settled: whatever this panel decides, it will decide on the law of who may sue — not on the Chiefs. The board has now spent $240,482 to ask federal courts for permission to be heard. On Wednesday, for 38 minutes, three judges asked whether the permission exists. Listen to the argument and judge the answers for yourself.
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Stop The Board attended the argument by livestream and reviewed the court's recording. Quotations are from that recording. This post is news and analysis from an advocacy organization opposed to the lawsuits; the full recording and transcript are linked above so readers can check our account against the source.