Wilder v. Bernstein

• Decision Date: 08 June 1988
• Docket Number: D,1405 and 1406,Nos. 1404,s. 1404
• Citation: 848 F.2d 1338
• Parties: Shirley WILDER, et al., Plaintiffs-Appellees, v. Blanche BERNSTEIN, Individually and as Administrator of the New York City Human Resources Administration, et al., Defendants-Appellees, Abbott House, et al., Intervenors-Appellees, Paula Rabinow, Individually and as Director of the Joint Planning Service, et al., Appellants. ockets 87-7406, 87-7408 and 87-7410.
• Court: U.S. Court of Appeals — Second Circuit

Page 1338

848 F.2d 1338

56 USLW 2725

Shirley WILDER, et al., Plaintiffs-Appellees, v. Blanche BERNSTEIN, Individually and as Administrator of the New York City Human Resources Administration, et al., Defendants-Appellees Abbott House, et al., Intervenors-Appellees Paula Rabinow, Individually and as Director of the Joint Planning Service, et al., Appellants.

Nos. 1404, 1405 and 1406, Dockets 87-7406, 87-7408 and 87-7410.

United States Court of Appeals Second Circuit.

Argued June 24, 1987.

Decided June 8, 1988.

Andrew Irving, New York City (Michael N. Rosen, Maxine Fass, Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, on the brief), for appellant Goldsmith.

Gerald E. Bodell, New York City (Bodell & Gross, New York City, on the brief), for appellants Schneider, Levine, Trobe, Demartino, Rabinow, Barry, Sheridan, Starace, and Quinn.

Richard E. Nolan, New York City (James S. Goddard, Davis Polk & Wardwell, New York City, on the brief), for appellants Howard, Francene, Sheila, Apers, O'Neill, White, McCormack, Breen, Foley, Chillion, McNaughton, James, Chrysostom, Fogarty, Wallace, Fontaine, McMahon, Patrick, Mary Sheila, Trager, Meaney, Olivia, Harris, and Altheimer.

Marcia Robinson Lowry, New York City (Christopher A. Hansen, David B. Goldstein, American Civil Liberties Union, New York City, on the brief), for plaintiffs-appellees.

Elizabeth Dvorkin, New York City (Peter L. Zimroth, Corp. Counsel, Leonard Koerner, June A. Witterschein, Diane J. Morgenroth, Lucy A. Cardwell, New York City, on the brief), for municipal defendants-appellees.

Mark J. Bunim, New York City (Ivy S. Fischer, Ohrenstein & Brown, New York City, on the brief), for defendant-appellee Kaufman.

Stephen Wise Tulin, New York City (Polier, Tulin, Clark & Zalk, New York City, Donald J. Cohn, Seth M. Lahn, Webster & Sheffield, New York City, on the brief), for intervenors-appellees.

Joseph W. Bartlett, Gaston Snow Beekman & Bogue, New York City, filed a brief for amici curiae Federation of Protestant Welfare Agencies, et al., and a brief for amici curiae Community Service Soc. of New York, et al.

Beth Otten, Roger K. Evans, Dara Klassel, New York City, Laura R. Rockett, Raggio, Jaffe & Kayser, New York City, filed a brief for amici curiae Planned Parenthood Federation of America, Inc. and Planned Parenthood of New York City Inc.

Before NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal challenges the settlement of a class action that effects major changes in the way New York City discharges its obligations to arrange for the care of children requiring placement in institutions and foster homes. Because New York City has historically contracted with religiously affiliated child care agencies to provide placement for most of the children requiring institutional and foster home settings and because New York law provides for religious matching of children and sectarian child care agencies, the lawsuit posed troublesome issues arising under both the Establishment of Religion and the Free Exercise of Religion Clauses of the Constitution. The suit also raised serious issues under the Equal Protection Clause and related statutes arising from alleged inequality of treatment based on the race of the children. The settlement has been achieved between the plaintiffs, representing a class of Black Protestant children, and the defendant municipal officials responsible for the City's child care system (collectively "the City"). The settlement has also been agreed to by a group of private child care agencies, which intervened in the District Court, initially to oppose the settlement. The settlement was opposed in the District Court and now on appeal by a group of administrators of private child care agencies that characterize themselves as "Catholic and Jewish affiliated" agencies. Brief for Defendants-Appellants Schneider et al. at 1. These administrators (hereinafter "the sectarian agencies") were defendants in the District Court but were dismissed as parties when the settlement was approved. Officials of New York State, who were defendants, were dismissed as parties after advising the District Court that they had withdrawn their objections to the settlement.

The appeal, brought by the sectarian agencies, is from the April 28, 1987, judgment of the District Court for the Southern District of New York (Robert J. Ward, Judge), giving final approval to the settlement. The settlement had been initially approved by Judge Ward on October 8, 1986, subject to compliance with four conditions. The final judgment ruled that the conditions had been met. Judge Ward's opinion giving initial approval to the settlement, reported at 645 F.Supp. 1292, is notable for its thoroughness, craftsmanship, scholarship, and sensitivity to the issues presented. Familiarity with that opinion is not only assumed, it is virtually indispensable to an understanding of this appeal. Indeed, in light of its thoroughness, we need only summarize the complex background of this litigation and the provisions of the settlement before turning to the appellants' contentions.

Background

Under New York law children are "placed" in institutions or foster care homes by one of two procedures. Some are taken away from their parents upon a finding by the Family Court of abuse or neglect, N.Y. Family Court Act, Art. 10 (McKinney 1983); others are voluntarily committed by parents, N.Y. Soc. Serv. Law Sec. 384-a (McKinney 1983). In both situations the child is placed in the custody of the New York City Commissioner of Social Services. About 17,000 children are currently in placement.

New York City has the option of caring for these children in its own facilities or contracting with private agencies. In pursuance of a long tradition, it has elected to rely heavily on private agencies. At present more than 90% of the children are placed through private agencies. The City contracts with some 60 private agencies. Most of them are religiously affiliated. These agencies place the child either with a foster family or in an institution run by the agency, depending on the child's needs. About 70% of the children are in foster homes. About 90% of the per diem expenses of the children are paid to the agencies from federal, state, and city funds.

The religious matching aspect of New York's child care scheme is set forth in state constitutional and statutory provisions. The State Constitution provides that a child shall be placed "when practicable, in an institution or agency governed by persons, or in the custody of a person, of the same religious persuasion as the child." N.Y. Const. art. 6, Sec. 32 (McKinney 1987). The primary implementing statute provides that a commitment shall be made "when practicable, to an authorized agency under the control of persons of the same religious faith as that of the child." N.Y. Soc. Serv. Law Sec. 373(1) (McKinney 1983). The statute further provides that it shall be applied "so far as consistent with the best interests of the child" and "where practicable ... so as to give effect to the religious wishes" of the parents. Id. Sec. 373(7). In the absence of the parents' expressed wishes, "it shall be presumed that the parent wishes the child to be reared in the religion of the parent." Id.

These religious matching provisions were authoritatively construed by the New York Court of Appeals in 1972. In re Dickens v. Ernesto, 30 N.Y.2d 61, 330 N.Y.S.2d 346, 281 N.E.2d 153, appeal dismissed for want of substantial federal question, 407 U.S. 917, 92 S.Ct. 2463, 32 L.Ed.2d 803 (1972). Considering the provisions in the context of an adoption, the Court said that the statutes "place[ ] primary emphasis on the temporal best interests of the child, although the religious preference of the natural parents remains a relevant consideration." Id. at 66, 330 N.Y.S.2d at 348, 281 N.E.2d at 155. "[R]eligion," the Court continued, "is but one of many factors in the placement of a child," and a religious placement, "though desirable, is not mandatory." Id. at 65-66, 330 N.Y.S.2d at 348, 281 N.E.2d at 155.

The pending litigation, brought initially to challenge the state law provisions regarding religious matching in connection with publicly funded child care placements, was initiated in 1973. Subsequently, a three-judge district court was convened pursuant to 28 U.S.C. Sec. 2281 (repealed 1976). The three-judge court confined its decision to the facial validity of the challenged state constitutional and statutory provisions and concluded that they did not violate the Establishment Clause of the First Amendment. Wilder v. Sugarman, 385 F.Supp. 1013 (S.D.N.Y.1974) (per curiam) (Wilder I ). Since the Court's reasoning bears on issues raised in the pending appeal, it must be set forth, at least briefly.

The Court initially analyzed the Establishment Clause claim under the three-part test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971):

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968); finally, the statute must not foster "an excessive government entanglement with religion." Walz [v. Tax Commission, 397 U.S. 664,] 674 [90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970) ].

Viewing the state law provisions for funding and religious matching as part of an integrated scheme, the three-judge court in Wilder I concluded that the scheme did not have a solely secular purpose and did have an effect that, "[a]bsent countervailing circumstances, ... could be to impermissibly inculcate religion." 385 F.Supp. at 1023-24. However, the Court concluded, such countervailing circumstances arose out of the State's obligation, once it accepted the responsibility for caring for the children in the place of their parents, to...