Wilder v. Bernstein

• Decision Date: 08 October 1986
• Docket Number: No. 78 Civ. 957 (RJW).,78 Civ. 957 (RJW).
• Citation: 645 F. Supp. 1292
• Parties: Shirley WILDER, Thomas Edwards, and Sharon Rodwell, et al., Plaintiffs, v. Blanche BERNSTEIN, individually and as Administrator of the New York City Human Resources Administration, et al., Defendants, and Abbott House, et al., Intervenors.
• Court: U.S. District Court — Southern District of New York

645 F. Supp. 1292

Shirley WILDER, Thomas Edwards, and Sharon Rodwell, et al., Plaintiffs, v. Blanche BERNSTEIN, individually and as Administrator of the New York City Human Resources Administration, et al., Defendants, and Abbott House, et al., Intervenors.

No. 78 Civ. 957 (RJW).

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

October 8, 1986.

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American Civil Liberties Union Foundation Children's Rights Project, New York City, for plaintiffs; Marcia Robinson Lowry, Lauren C. Anderson, Christopher A. Hansen, Michael B. Mushlin, of counsel.

Law Dept. of the City of New York, Office of the Corp. Counsel, New York City, for defendants Bernstein, New York City, Sanders, Parry, Beine, Marino and Goldin; Frederick A.O. Schwarz, Jr., Corp. Counsel, Diane J. Morgenroth, Michele M. Ovesey, Gary P. Shaffer, Asst. Corp. Counsel.

Dept. of Law of the State of N.Y., Office of the Atty. Gen., New York City, for defendants Blum and Levitt.

Robert Abrams, Atty. Gen., R. Scott Greathead, First Asst. Atty. Gen., Judith T. Kramer, Asst. Atty. Gen., Davis Polk & Wardwell, New York City, for defendants Howard, Mary Francene, Sheila, Apers, O'Neill, White, McCormack, Breen, Foley, Chillion, McNaughton, Mary James, Mary Chrysostom, Fogarty, Wallace, Fontaine, McMahon, Mary Patrick, Mary Sheila, Trager, Meaney, Mary Olivia, Harris and Altheimer; Richard E. Nolan, Thomas J. Aquilino, Jr., Whitney L. Schmidt, Karoly S. Gutman, of counsel.

Bodell & Gross, New York City, for defendants Rabinow, DeMartino, Levine, Trobe, Schneider, Barry, Sheridan, Marita Paul, Starace and Quinn; Gerald E. Bodell, Helen McTaggart, of counsel.

Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, for defendant Goldsmith; Michael N. Rosen, Floran L. Fink, Maxine Fass, Andrew Irving, of counsel.

Ohrenstein & Brown, New York City, for defendant Kaufman; Mark J. Bunim, Ivy S. Fischer, of counsel.

Webster & Sheffield, and Polier, Tulin, Clark & Zalk, New York City, for intervenors; Donald J. Cohn, Stephen Wise Tulin, Tracy E. Miller, Seth M. Lahn, of counsel.

OPINION AND ORDER

ROBERT J. WARD, District Judge.

This civil action, for declaratory and injunctive relief under 42 U.S.C. §§ 1983, 1985 and 1986, and 28 U.S.C. §§ 2201 and 2202, is brought on behalf of a certified class of black Protestant¹ children in need of child care services out of their home, and on behalf of several New York taxpayers. Plaintiffs challenge New York's statutory scheme for the provision of child care services, and the operation of the New York City child care system, on the grounds that the statutes and operation of the New York City system 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. § 2000d. Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1343(a)(3) and 1343(a)(4), and 42 U.S.C. § 2000d. Plaintiffs, defendant New York City ("City") and individual defendants currently employed by the City (collectively, "City defendants"), defendant Kaufman, and eighteen intervening child care agencies ("intervenors")² move for an order pursuant to Rule 23(e), Fed.R.Civ.P., approving a proposed stipulation of settlement ("Stipulation") that was presented to the Court on December 19, 1985. For the reasons that follow, and subject to certain conditions set forth below, the motion is granted and the Stipulation is approved.

BACKGROUND

This litigation, which originated in a lawsuit filed in June 1973, Wilder v. Sugarman, 73 Civ. 2644(HRT) (S.D.N.Y.), has in the course of its development over the past thirteen years assumed very much a life of its own. The official documents filed in the instant case alone—mostly relating to discovery —number over 750. The intersecting constitutional, statutory and child care issues raised in the action have provoked commentary in legal publications, e.g., Note, With the Best of Intentions: The Constitutionality of the Statutory Scheme for Voluntary Child-Care Agencies in New York, 4 N.Y.U.Rev.L. & Soc. Change 21 (1974), independent study by researchers in the fields of child care and public services, e.g., S. Finch & D. Young, Foster Care and Non-Profit Agencies (Lexington Books 1977); D. Gurak, D. Smith & M. Goldson, The Minority Foster Child: A Comparative Study of Hispanic, Black and White Children (Hispanic Research Center, Fordham University, Monograph No. 9, 1982) ("The Minority Foster Child"), and review by government officials or advisory bodies, e.g., Redirecting Foster Care (Report of Mayor's Task Force on Foster Care, issued June 1980).³ Much of the relevant history of this litigation is chronicled in previously published decisions, chiefly Wilder v. Sugarman, 385 F.Supp. 1013 (S.D.N.Y.1974) (three-judge court) ("Wilder I"), and Wilder v. Bernstein, 499 F.Supp. 980 (S.D.N.Y.1980) ("Wilder II"), familiarity with which is assumed. A selective review of the case's history is helpful, however, to an understanding of its present posture.

I. Wilder I

The complaint filed in June 1973 and assigned to Judge Tyler of this Court, Wilder v. Sugarman, 73 Civ. 2644(HRT) (S.D. N.Y.), raised constitutional challenges to the New York child care system similar to those still before this Court in the instant action. Judge Tyler referred the case on plaintiffs' motion to a three-judge court convened pursuant to 28 U.S.C. §§ 2281 and 2283. In June 1974, the three-judge panel entered a pretrial order identifying the issue before it as:

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

Thereafter, the panel filed an opinion, Wilder I, addressing "the facial constitutionality of the New York State constitutional and statutory provisions regarding religious matching for publicly-funded foster care of children." 385 F.Supp. at 1018. The opinion expressly disclaimed consideration of "any aspect of the application of these provisions in specific instances." Id.

The three-judge court in Wilder I reviewed the existing statutory scheme in New York for placing children in care outside of the home, in light of the historical development of the state's child welfare system and the longstanding participation in it by religiously affiliated child care institutions. The panel noted in particular the following provisions of the New York Constitution and statutes:

The system has its modern genesis in Article VI, § 32 of the New York Constitution, which provides that a child "shall be committed or remanded or 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." This constitutional provision is implemented by § 373 of the New York Social Services Law, ... which states in pertinent part:

"1. Whenever a child is committed to any agency, association, corporation, institution or society, other than an institution supported and controlled by the state or a subdivision thereof, such 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."

Amendments to § 373 of the New York Social Services Law and § 116 of the New York Family Court Act supplement the religious matching provision by specifying that the provisions of those sections "shall, so far as consistent with the best interests of the child, and where practicable, be applied so as to give effect to the religious wishes of the parents." New York Social Services Law § 373(7); New York Family Court Act § 116(g).

With respect to public payment of the expenses of caring for the children, Article 7, § 8(2) of the New York Constitution asserts that nothing shall prevent the Legislature from providing, inter alia, for:

" ... the aid, care and support of neglected and dependent children and of the needy sick, through agencies and institutions authorized by the state board of social welfare or other state department having the power of inspection thereof, by payments made on a per capita basis directly or through the subdivisions of the state...."

This is implemented by § 153 of the Social Services Law allowing for reimbursements by the State to social services districts, cities, and towns for the administration of public assistance programs.

385 F.Supp. at 1018.

New York's statutory provisions authorizing the religious matching of children with sectarian foster care agencies, combined with state reimbursement of such institutions for the care of children placed by local government agencies, presented the Wilder I court with at least a "theoretical ... clash between the Establishment and Free Exercise Clauses of the First Amendment." Id. The court accepted the argument offered by the defendants there that, "far from requiring or mandating placement according to religion," the New York constitution and statutes at issue "simply permit such placement `so far as consistent with the best interests of the child, and where practicable.'" Id. at 1021 (emphasis added). This interpretation of the New York child placement scheme did not resolve the constitutional question before the panel, however, in part because it did not address the additional problem of state funding of religiously affiliated child care agencies. The three-judge panel therefore found it necessary to examine New York's child care system under the familiar three-part test for Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).⁴

Under the first prong of the Lemon v. Kurtzman test, the court in Wilder I had little...