Wilder v. Sugarman, 73 Civ. 2644 HRT.
| Decision Date | 19 November 1974 |
| Docket Number | No. 73 Civ. 2644 HRT.,73 Civ. 2644 HRT. |
| Citation | 385 F. Supp. 1013 |
| Parties | Shirley WILDER et al., Plaintiffs, v. Jule SUGARMAN et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Marcia Robinson Lowry, New York Civil Liberties Union, New York City, Charles Schinitsky, Carol Sherman and Deborah G. Steinberg, The Legal Aid Society, Brooklyn, N. Y., for plaintiffs.
Adrian P. Burke, Corp. Counsel, for defendants, Jule Sugarman, Barbara Blum, Elizabeth Beine and Adolin Dall, by James G. Greilsheimer, Carmella Ackman, Asst. Corp. Counsels, New York City.
David H. Berman, New York City, for defendants, Florence M. Kelley, Abe Lavine and George Chesbro.
Milburn & Ackerman, New York City, for defendant Talbor Perkins Children's Services.
Hale, Grant, Meyerson, O'Brien & McCormick, New York City, for defendant, Edmund G. Burbank, individually and as Administrator of Sheltering Arms Children's Services.
McDermott & Torpy, Peekskill, N. Y., for defendant, Sister Mary Patricia Kelley, individually and as Executive Director of Villa Loretto.
Migdal, Tenney, Glass & Pollack, New York City, for defendant, Veleria E. Bullard, individually and as Executive Director of Hillcrest Center for Children.
Austin J. Power, New York City, for defendant, Vernon Daniels, individually and as Executive Director of Society for Seamen's Children.
Martin & Carey, New York City, for defendant, Dr. Edward L. Hawthorne, individually and as Administrator of Brooklyn Home for Children.
Satterlee & Stephens, New York City, for defendant, Robert M. Bauers, individually and as Administrator of Lutheran Community Services.
Amend & Amend, New York City, for defendant, Sister Laura Marie, individually and as Executive Director of St. Germaine's Home.
Willkie, Farr & Gallagher, New York City, for defendant, Msgr. Edmund F. Fogarty, individually and as Administrator of Mission of the Immaculate Virgin.
Morton L. Deitch, Donald L. Newborg, New York City, for defendant, Jacob L. Trobe, individually and as Executive Director of Jewish Child Care Assn.
Bodell, Gross & Magovern, New York City, for defendants, William H. Bennington, individually and as Executive Director of St. Christopher's School; Sister Mary Kiernan, individually and as Administrator of Cardinal McCloskey School & Home; Dr. Ian A. Morrison, individually and as Administrator of Greer, A Children's Community; Sister Marita Paul, individually and as Administrator of St. Joseph's Home of Peekskill; Sister Marian Cecilia Schneider, individually and as Administrator of The New York Foundling Hospital; Rosemary A. Sheridan, individually and as Administrator of St. Cabrini Home, Inc.; Sister Della Mae Quinn, R.S.M., individually and as Administrator of St. Michael's Home; and Sister Rose Vincent, individually and as Administrator of St. Agnes Home and School for Children.
Polier, Tulin & Clark, New York City, for defendant, Florence Kreech, individually and as Executive Director of Louise Wise Services.
Bleakley, Platt, Schmidt & Fritz, New York City, for defendant, Etta M. Stelle, individually and as Administrator of Speedwell Services for Children.
Humes, Andrews, Botzow & Wagner, New York City, for defendant, Rev. William J. Winterrowd, individually and as Executive Director of St. Peter's School.
Reilly, Fleming & Reilly, New York City, for defendant, Sister Merced, individually and as Administrator of Divine Providence Shelter.
Cullen & Dykman, Brooklyn, N. Y., for defendant, John D. Lyman, Jr., individually and as Administrator of Brookwood Child Care.
Davis, Polk & Wardwell, New York City, for or of counsel to 25 defendants.
Robinson, Silverman, Pearce, Aronsohn, Sand & Berman, New York City, for defendant, Dr. Jerome M. Goldsmith, individually and as Executive Director of Jewish Board of Guardians.
Marcel Weber, New York City, for defendant Lester Kaufman, individually and as Administrator of Ohel Children's Home Fund, Inc.
Bernstein, Seawell, Kaplan, Block & Weiner, New York City, for defendant Dora Zucker, individually and as Administrator of Hebrew Children's Home.
Patrick Campbell, New City, N. Y., for defendant Donald Porcaro, individually and as Administrator of St. Agatha Home for Children.
Fox & Meyer, New York City, for defendant Isaac Maizes, individually and as President of Maimonides Residential Center.
Harry A. Gross, New York City, for defendant Tev Goldsman, individually and as Executive Director of Blueberry, Inc. Gruberg, McKay, O'Keefe & Barranco, New York City, for defendants Ruth V. Freedman, individually and as Administrator of Salvation Army Foster Home and Adoption Services, and Brigadier Henry Berkhoudt, individually and as Superintendent of Wayside Home School for Girls.
Milbank, Tweed, Hadley & McCloy, New York City, for defendant Douglas W. Merrill, individually and as Executive Director of Woodycrest Five-Points Child Care.
Sage, Gray, Todd & Sims, New York City, for defendant Sister Mary Patrick, individually and as Administrator of St. Dominic's Home.
Spengler, Carlson, Gubar & Churchill, New York City, for defendant Russell C. Snow, individually and as Administrator of Jennie Clarkson Home.
Weller, Rogers, Bergen & Froessel, Jamaica, N. Y., for defendant Severin J. Laliberte, individually and as Administrator of Ottilie Home for Children.
Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, for defendants William M. Griffin, individually and as Director & Julia Dyckman, Andrus Memorial Home and Lester Peddy, individually and as Director of Brooklyn Bureau of Community Services.
Joseph W. McGovern, New York City Hurley, Kearney & Lane, Brooklyn, N. Y., for amici curiae, Archdiocese of New York and Catholic Charities, Diocese of Brooklyn.
Louis H. Pollak, University of Pa. Law School, Philadelphia, Pa., for amicus curiae, Citizens' Committee for Children of New York, Inc.
Karl D. Zukerman, Richmond, for amicus curiae, Federation of Jewish Philanthropies of New York.
Norman Dorsen, New York City, for amicus curiae, Federation of Protestant Welfare Agencies, Inc.
Before MANSFIELD, Circuit Judge, and TYLER and DUFFY, District Judges.
On June 14, 1973, plaintiffs commenced this action seeking a declaration that the New York constitutional and statutory provisions for child placement violate the First, Eighth and Fourteenth Amendments on the grounds that they discriminate against children who are black and Protestant. The plaintiffs are six named children for whom guardians ad litem have been appointed.
The complaint names as defendants, individually and in their respective capacities, the heads of the New York City Human Resources Administration, Special Services for Children, Bureau of Child Welfare and its Division of Inter-Agency Relationships, as well as various New York State officials, including the Administrative Judge of the Family Court, the Commission of the New York State Department of Social Services and the Executive Director of the New York State Board of Social Welfare. In addition to these public officials, the administrators and executive directors of all 77 agencies providing child care in New York City have been named.
In addition to seeking a declaration that the New York constitutional and statutory provisions are violative of the Constitution and an injunction against their continued enforcement, plaintiffs claim consequential and punitive damages against the public officials and the heads of the child-care agencies.1
On September 21, 1973, the assigned judge granted plaintiffs' motion to convene a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2283. On June 4, 1974, the statutory court stated its desire to take under advisement, prior to the completion of discovery, plaintiffs' allegations that the constitutional and statutory provisions of state-wide application facially violate the Establishment Clause of the First Amendment. On June 7, 1974, a pre-trial order was entered, defining the issue before the court as follows:
"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. . . ."
and further directing that, for purposes of this portion of the case, the only facts to be considered shall be those admitted by all the parties in their answers to the complaint and those facts which are properly the subject of judicial notice.
Thus, the present proceeding involves only the facial constitutionality of the New York State constitutional and statutory provisions regarding religious matching for publicly-funded foster care of children. It does not concern any aspect of the application of these provisions in specific instances.
An analysis must begin with a delineation of the general statutory structure of the child placement system of New York.2 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, McKinney's Consol. Laws, c. 55, which states in pertinent part:
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...
To continue reading
Request your trial
-
Wilder v. Bernstein
...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 wi......
-
Lora v. Board of Ed. of City of New York, 75-C-917.
...complained of in the present case is more subtle than those considered and struck down by the Supreme Court. Cf. Wilder v. Sugarman, 385 F.Supp. 1013 (S.D.N.Y.1974) (raising somewhat similar legal contentions; the case has been dismissed as moot). No one contends that any of the private spe......
-
Nicholson v. Williams
...contending that it violated the First, Eighth, and Fourteenth Amendments of the United States Constitution. See Wilder v. Sugarman, 385 F.Supp. 1013 (S.D.N.Y.1974). A consent decree establishing a secular "first-come, first-served" rule for admittance was mandated for private institutions s......
-
Wilder v. Bernstein, 78 Civ. 957.
...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 ......