499 F.Supp. 980 (S.D.N.Y. 1980), 78 Civ. 957, Wilder v. Bernstein

Docket Nº:78 Civ. 957.
Citation:499 F.Supp. 980
Party Name:Shirley WILDER, Thomas Edwards, and Sharon Rodwell, and Barry Parker, by his mother and next friend, Madeline Butler; Robin Herbert, by her mother and next friend, Nancy Herbert; Shedrick Roberts, by his mother and next friend, Annie Roberts; and Christopher Torian, by his mother and next friend, Lillian Torian, on their own behalf and on behalf of
Case Date:October 01, 1980
Court:United States District Courts, 2nd Circuit

Page 980

499 F.Supp. 980 (S.D.N.Y. 1980)

Shirley WILDER, Thomas Edwards, and Sharon Rodwell,

and

Barry Parker, by his mother and next friend, Madeline Butler; Robin Herbert, by her mother and next friend, Nancy Herbert; Shedrick Roberts, by his mother and next friend, Annie Roberts; and Christopher Torian, by his mother and next friend, Lillian Torian, on their own behalf and on behalf of all others similarly situated,

and

Dr. Kenneth Clark; Rev. Howard Moody; Dr. Richard Cloward; and Mildred Davis, Plaintiffs,

v.

Blanche BERNSTEIN, individually and as Administrator of the New York City Human Resources Administration; Barbara Blum, individually and as Commissioner of the New York State Department of Social Services; Beverly Sanders, individually and as Administrator of Special Services for Children; Carol Parry; Elizabeth Beine; Linda Marino, individually and as Director of the Office of Allocations and Accountability of Special Services for Children; Arthur Levitt, as Comptroller of the State of New York; Harrison Goldin, as Comptroller of the City of New York; Paula Rabinow, individually and as Director of the Joint Planning Service; Sandra Howard, individually and as Supervisor of the Central Referral Unit; Sister Mary Francene, individually and as Administrator of the Angel Guardian Home; Sister Sheila, individually and as Executive Administrator of Astor Home for Children; Fred Apers, individually and as Executive Director of Cardinal Hayes Home for Children; John DeMartino, individually and as Executive Director of Cardinal McCloskey School and Home for Children; James P. O'Neill, individually and as Executive Director of Catholic Guardian Society; Catherine White, individually and as Director of Catholic Guardian Society of the Diocese of Brooklyn; Sister Una McCormack, individually and as Executive Director of Catholic Home Bureau for Dependent Children; Dr. Jerome Goldsmith, individually and as Executive Director of Jewish Board of Guardians; Abe Lavine, individually and as Executive Vice President of Jewish Child Care Association of New York; Jacob Trobe; Brother Brendan Breen, individually and as Administrator of Lincoln Hall; Brother Christopher Foley; Ralph Chillion, individually and as Director of Little Flower Children's Services; Sister Rosalie McNaughton, individually and as Executive Director of McMahon Services for Children; Sister Mary James, individually and as Administrator of Madonna Heights School for Girls; Kenneth Miller, individually and as Director of Maimonides Residential Centers; Isaac Maizes; Sister Mary Chrysostom, individually and as Administrator of Mercy Home for Children; Bathsheva Mandel, individually and as Director of Mishkon B'Nai Y'Israel; Monsignor Edmund F. Fogarty, individually and as Executive Director of Mission of the Immaculate Virgin; Sister Marian Cecilia Schneider, individually and as Executive Director of New York Foundling Hospital; Lester Kaufman, individually and as Executive Director of Ohel Children's Home; Hugh Wallace, individually and as Residence Director of Pius XII School; Brother Robert Fontaine; Denis Barry, individually and as Executive Director of St. Agatha Home for Children; Rosemary A. Sheridan, individually and as Executive Director of St. Cabrini Home, Inc.; Robert J. McMahon, individually and as Executive Director of St. Christopher's Home; Sister Mary Patrick, individually and as Executive Director of St. Dominic's Home; Sister Mary Sheila, individually and as Director of St. Germaine's Home; Brother Thomas Trager, individually and as Executive Director of St. John's Residence and School for Boys; Sister Rita Meaney, individually and as Administrator of St. Joseph's Children's Services; Sister Marita Paul, individually and as Executive Director of St. Joseph's Home of Peekskill; Sister Mary Olivia, individually and as Administrator of St. Mary of the Angels Home; Emanuel J. Starace, individually and as Executive Director of St. Michael's Home; Sister Della Mae Quinn, R.S.M.; Rev. Robert M. Harris, individually and as Administrator of St. Vincent's Hall; Joseph Altheimer, individually and as Administrator of Sisters of the Good Shepherd Residences, Defendants.

No. 78 Civ. 957.

United States District Court, D. New York

Oct. 1, 1980

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Children's Rights Project, New York Civil Liberties Union, New York City, for plaintiffs; Marcia Robinson Lowry, New York City, of counsel.

Davis, Polk & Wardwell, New York City, for defendants Howard, Francene, Sheila, Apers, O'Neill, White, McCormack, Breen, Chillion, McNaughton, James, Chrysostom, Fogarty, Wallace, McMahon, Mary Sheila, Trager, Meaney, Olivia, Harris and Altheimer; Richard E. Nolan, Alfred E. Schretter, Thomas J. Aquilino, Jr., New York City, of counsel.

Robert Abrams, Atty. Gen. of the State of New York, New York City, for defendants Blum and Levitt; Judith T. Kramer, Asst. Atty. Gen., New York City, of counsel.

Allen G. Schwartz, Corp. Counsel of the City of New York, New York City, for defendants Bernstein, Sanders, Parry, Marino and Goldin; James G. Greilsheimer, First Asst. Corp. Counsel, Lorna Bade Goodman, Asst. Corp. Counsel, New York City, of counsel.

Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, for defendant Goldsmith and Co-Counsel to defendant Rabinow; Michael N. Rosen, Floran L. Fink, New York City, of counsel.

Bodell & Magovern, P. C., New York City, for defendants DeMartino, Lavine, Schneider, Barry, Sheridan, Paul, Starace and Rabinow; Gerald E. Bodell, Leonard F. Manning, New York City, of counsel.

Fox & Meyer, New York City, for defendant Miller; Jay Fox, New York City, of counsel.

Hale & Russell, New York City, for defendant Sister Mary Patrick; John P. Hale, New York City, of counsel.

Harold A. Horowitz, New York City, for defendant Mandel.

Feder, Kaszovitz & Weber, New York City, for defendant Kaufman; Marcel Weber, New York City, of counsel.

OPINION

ROBERT J. WARD, District Judge.

This is a civil action pursuant to 42 U.S.C. ss 1983, 1985, 1986 and 28 U.S.C. ss 2201, 2202, seeking damages and declaratory and injunctive relief against the New York statutory scheme for the provision of child-care services. In this action brought on behalf of all black Protestant 1 children presently in need of child-care services and on behalf of several New York taxpayers, plaintiffs challenge the statutes, both on their face and as applied, and the operation of the New York City child-care system on the grounds that they violate the establishment and free exercise clauses of the first amendment, the equal protection and due process clauses of the fourteenth amendment, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. ss 2000d-2000d-4. Jurisdiction is asserted under 28 U.S.C. ss 1343(3) & 1331(a).

Presently before the Court are defendants' motions, pursuant to Rule 12(b)(6), Fed.R.Civ.P., to dismiss plaintiffs' second amended complaint for failure to state a claim upon which relief may be granted and plaintiffs' motion, pursuant to Rule 23, Fed.R.Civ.P., for an order certifying this suit as a class action. For the reasons set forth below defendants' motions are granted in part and denied in part, and plaintiffs' motion is granted.

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Factual Background

More than seven years ago, on June 14, 1973, six named children, for whom guardians ad litem had been appointed, commenced an action against the child-care agencies and the public officials responsible for the care of New York City children, asserting that the statutory scheme for the provision of child-care services, and the manner in which those services were provided, violated the first, eighth and fourteenth amendments, and resulted in racial and religious discrimination in the access to these services. Complaint, Wilder v. Sugarman, 73 Civ. 2644 (S.D.N.Y., filed June 14, 1973) ("Wilder I "). In addition to seeking a declaration that the New York constitutional and statutory provisions violated the Constitution and an injunction against the continued enforcement of these provisions, the Wilder I plaintiffs sought consequential and punitive damages from the public officials and the heads of the child-care agencies. On September 21, 1973, the judge to whom the case had originally been assigned granted the Wilder I plaintiffs' motion to convene a three-judge court pursuant to 28 U.S.C. ss 2281 & 2283. Subsequently, on June 4, 1974, the three-judge court decided, on its own initiative, to take under advisement, prior to the completion of discovery, the Wilder I plaintiffs' allegations that the constitutional and statutory provisions of state-wide application 2 facially violated the establishment clause of the first amendment. A pre-trial order was entered on June 7, 1974 defining the issue before the court as:

(w)hether New York Social Services Law s 373(1), (2) and (5), New York State Constitution Article 6, s 32, Family Court Act s 116(a), New York Social Services Law s 153 and New York Constitution Article 7, s 8(2) violate the Establishment Clause of the First Amendment to the Constitution of the United States on their face....

and further directing that, for purposes of that portion of the case, the only facts to be considered would be those admitted by all parties in their answers and those which were properly the subject of judicial notice.

After hearing oral argument and reviewing the parties' submissions, the Wilder I court rendered its decision on the narrow issue it had framed in a per curiam opinion dated November 19, 1974. 3 It held that the New York laws challenged by the Wilder I plaintiffs represented "on their face a fair and reasonable accommodation between the Establishment and Free Exercise Clauses of the Constitution." Wilder v....

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