University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Wilder v. Bernstein CW-NY-0005
Docket / Court 73 Civ. 2644 ( S.D.N.Y. )
State/Territory New York
Case Type(s) Child Welfare
Attorney Organization Children's Rights, Inc.
Case Summary
In June 1973, this litigation was commenced as Wilder v. Sugarman, 73 Civ. 2644 (HRT), a class action involving non-white Protestant children placed in New York City's foster care system. It was filed in the U.S. District Court, Southern District of New York. The plaintiffs, represented by ... read more >
In June 1973, this litigation was commenced as Wilder v. Sugarman, 73 Civ. 2644 (HRT), a class action involving non-white Protestant children placed in New York City's foster care system. It was filed in the U.S. District Court, Southern District of New York. The plaintiffs, represented by Children's Rights, Inc., sought class certification, declaratory, and injunctive relief, as well as consequential and punitive damages against relevant state and city agencies. The plaintiffs claimed that the defendants violated the First, Eighth, and Fourteenth Amendments, Title VI of the Civil Rights Act of 1964, as well as state law, by discriminating against non-white Protestant children placed in New York City's foster care system based on their race and religious beliefs.

The plaintiffs contended that the New York City (NYC) child care system operated in a racially discriminatory manner and that Catholic and Jewish child care agencies contracting with the city were permitted to receive public funding while participating in a pattern and practice of discrimination against non-white children.

On September 21, 1973, the court granted the plaintiffs' motion to convene a three-judge court. A year later, the three-judge court entered a pre-trial order to define the facial constitutionality of New York's constitutional and statutory provisions regarding religious matching for foster care programs funded by the public. On November 19, 1974, the court agreed with the defendants' argument that state agencies were not required to make placements according to religion, but are permitted to do so when consistent with the best interests of the child. Upon an extensive discussion on the history of New York's foster care system and on the participation of religiously affiliated child care institutions, the court ruled that the New York laws represent, on their face, a "fair and reasonable accommodation" between the Establishment Clause and the Free Exercise Clause of the First Amendment. 385 F.Supp. 1013 (S.D.N.Y. 1974) (three-judge court)

In March 1978, a new action, Parker v. Bernstein, 78 Civ. 957 (RJW), was filed which raised similar challenges. The District Court, in a June 2, 1978 Order, dismissed Wilder v. Sugarman, on the condition that the opinion of the three-judge court would be treated as stare decisis in the surviving action. Subsequently, Parker v. Bernstein was amended and renamed Wilder v. Bernstein. See Wilder v. Bernstein, 499 F.Supp. at 986-87, n. 4. A class was certified in 1980 and defined as: "all those New York City children who are black, and who are Protestant, of other non-Catholic or non-Jewish faiths, or are of no religion, and are in need of child-care services outside their home." Wilder v. Bernstein, 499 F.Supp. at 994.

The New York Civil Liberties Union stepped in as co-counsel for the plaintiffs and amended the complaints twice to add additional children as plaintiffs. The plaintiffs again asserted that the religious matching provisions and relevant funding provisions of state law violated the First Amendment and included new assertions that the defendants' practices and the laws at issue necessarily resulted in a "mandatory preference" for religiously based services and that segregation and unequal access in child-care services resulted due to the defendants' discriminatory treatment of children based on race and religion. The defendants filed a motion to dismiss several claims, in which the court granted in part and denied in part. Specifically, on October 1, 1980 the court held that that the plaintiffs' complaint stated cognizable claims of violations of the First Amendment and the Fourteenth Amendment. Additionally, the court granted the plaintiffs' motion for class certification. 499 F.Supp. 980 (S.D.N.Y. 1980).

Before trial was to begin in August 1983, the Wilder plaintiffs and City defendants entered into settlement negotiations. In April 1984, an initial draft of a Stipulation of Settlement was presented to the Court for approval. At that time, the Court heard objections from nineteen contract child care agencies, and in June 1984 permitted them to intervene ("Wilder Intervenors" or "Intervenors"). The Intervenors objected to the initial draft Stipulation of Settlement's focus on discrimination rather than on the best interests of all children in foster care. The Intervenors' concerns were addressed on the record during further settlement negotiations and the Stipulation of Settlement was amended.

On October 8, 1986, the Stipulation of Settlement as amended was approved by this Court (Wilder Stipulation). Wilder v. Bernstein, 645 F.Supp. 1292 (S.D.N.Y.1986). A final judgment was entered on April 29, 1987 approving the Stipulation of Settlement. Subsequently, a number of foster care agencies which had been dismissed as defendants appealed the judgment. In June 1988, the Second Circuit affirmed this Court's approval of the Stipulation of Settlement. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir.1988).

The stipulation continued to include non-discrimination provisions, but added many more general provisions. Under its terms, the City was required to place children in foster care in a nondiscriminatory manner as to race and religion. The foster children were to be placed on a "first-come, first-served basis" in the best available program. Further, the children were to be evaluated "in accordance with good social work practice, to determine (1) the specific service needs of the child and (2) the level of care, and the specific type of program required by the child." The Stipulation provided that these evaluations be conducted prior to placement and in the case of pre-evaluation placements, no longer than 30 days after placement. To determine the best available program, the Stipulation required that the City hire a consultant to categorize and rate the quality of foster care programs. It also included provisions regarding vacancies, waiting lists, and therapeutic objections to regulate the placement of children.

To monitor compliance with the terms of the Stipulation of Settlement, the Stipulation provided for a three-member settlement panel ("Wilder Settlement Panel") and support staff.

The defendants made several objections to the Stipulation. On October 8, 1986, however, the court held that it had broad powers to approve a consent decree entered before trial. The court also held that the provision in the proposed settlement stating that children would be placed on a "first-come, first-served" basis did not violate the children's free exercise rights and that the city's interest in protecting the children's free exercise rights from religion was "sufficiently compelling" to warrant their differential treatment. Lastly, the court held that there were no violations of the Establishment Clause, although the settlement did provide for placement of children according to the parents' religious preferences. 645 F.Supp. 1292 (S.D.N.Y. 1986)

The defendant foster care agencies appealed. On June 8, 1988, the Court of Appeals held that the settlement, which provided for placement of children in foster care homes on a first-come, first-served basis, did not violate the state constitution or statute that allowed for religious matching of children with child care services. Also, the Court of Appeals found that the settlement did not infringe free exercise of religious rights of parents and children and therefore did not violate the religious establishment clause. 848 F.2d 1338 (2nd Cir. 1988)

On July 14, 1993, the plaintiffs moved to hold the defendants in contempt of the decree. The court did not sanction the defendants but found that the Consent Decree unambiguously applied to children placed with relatives ("kinship foster care"). The defendants were then directed to take "all appropriate steps" to ensure that the protections provided by the consent decree also applied to children in kinship foster care. 153 F.R.D. 524 (S.D.N.Y. 1994) The defendants appealed. On February 23, 1995, the Court of Appeals held that the decree was applicable to kinship placement and that changed circumstances, as alleged by the defendants, would be better addressed in a motion to modify the consent decree. 49 F.3d 69 (2nd Cir. 1995).

On February 19, 1997, the plaintiffs sought attorney fees in the amount of $112,458 and expenses in the amount of $27,394 for monitoring compliance with the settlement for the six-month period ending on June 30, 1996. The court awarded $72,149 in attorney fees and $2,813 in expenses. The plaintiffs then filed a motion for reconsideration. The court rejected that motion on October 24, 1997 and found that its prior calculation was proper based upon prevailing market rates. 982 F.Supp. 264 (S.D.N.Y. 1997). Another round of attorneys fees was entered in 1998 for monitoring activities from July 1, 1996 to June 30, 1997. 1998 WL 323492.

On March 3, 1998, the City, citing paragraphs 80 and 81 of the Stipulation, filed papers statingits position that the Stipulation had expired on or before December 29, 1997. The City's theory was that the Second Circuit issued its decision approving the Wilder Stipulation on June 8, 1988. The mandate order from the Second Circuit was required to be filed within 21 days of the Second Circuit's decision, i.e. June 29, 1988. Thus, the Stipulation became effective, at the latest, on June 29, 1988. Under the terms of the Stipulation set forth in the modified paragraph 80, the Stipulation does not 'remain in effect more than ... nine years and six months from the date the Stipulation went into effect and all the stays were lifted.' Accordingly, the Stipulation terminated on or before December 29, 1997. The City, therefore, sought an order declaring that the Stipulation had terminated and enjoining the parties from enforcing the terms of the Stipulation after December 30, 1997.

Plaintiffs countered two days later by asking the Court to extend the stipulation, arguing that the City was not in substantial compliance (and did not even claim to be in substantial compliance) with it. The plaintiffs pointed out, for example, that the required classification system is still not in operation and children are still not being evaluated within the 30 days designated by the Stipulation. In addition, the City had failed to even attempt to provide kinship foster children appropriate protections until seven years into the stipulation period.

While the issue of termination was pending, in accordance with the Court's earlier directive a group titled the "Wilder Settlement Panel" released a study on March 23, 1998, addressing Kinship Foster Care: Study of Cases Entering Kinship Care or Transferring Case Supervision from July to December 1996. This study set forth a failure by City defendants to comply with the Kinship Order and with the Stipulation regarding children in kinship foster care.

Accordingly, on July 1, 1998, Judge Ward held that "it is evident to the Court that the City has never, since the Stipulation went into effect on July 5, 1988, been close to substantially complying with the Stipulation," and therefore continued the Stipulation in effect. The Court explained, however, that it "has no intention of continuing the Stipulation indefinitely," but "an extension is required in order to compel the City to comply with the essential elements of the Stipulation." 1998 WL 355413.

Earlier, on December 3, 1995, eleven named plaintiffs (represented by many of the same lawyers) brought a different class action, Marisol A. v. Giuliani, action against City and State officials responsible for administering and monitoring New York City's child welfare system. claiming that the defendants' actions or inactions deprived plaintiffs of their rights under a diverse array of federal and state laws. Marisol is CW-NY-0001 in this Clearinghouse, and its litigation is described under that case. On December 1, 1998, the City and the Marisol plaintiffs submitted a settlement for approval by the court, and simultaneously the City and the Wilder plaintiffs moved to dismiss the Wilder litigation; explaining that the Wilder obligations would be incorporated into the Marisol settlement, without maintaining two parallel oversight panels.

On March 31, 1999, the District Court agreed that the comprehensive approach contained in the Marisol City Settlement Agreement, would better fulfill the goals of Wilder. Judge Ward explained that "The Wilder Obligations, which affect only one aspect of the child welfare system, have proven extremely difficult to implement within a system with so many other functioning areas." Accordingly, this case was dismissed. Marisol A. ex rel. Forbes v. Giuliani, 185 F.R.D. 152 (S.D.N.Y. 1999).

Alice Liu - 05/19/2013


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Issues and Causes of Action
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Issues
Constitutional Clause
Equal Protection
Establishment Clause
Free Exercise Clause
Content of Injunction
Discrimination Prohibition
Monitor/Master
Monitoring
Recordkeeping
Defendant-type
Jurisdiction-wide
Discrimination-basis
Race discrimination
Religion discrimination
General
Adoption
Classification / placement
Disparate Treatment
Foster care (benefits, training)
Funding
Juveniles
Payment for care
Placement in shelters
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Racial segregation
Relative caretakers
Plaintiff Type
Private Plaintiff
Race
Black
Causes of Action State law
42 U.S.C. ยง 1983
Title VI, Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.
Defendant(s) Administrative Judge of the Family Court
New York City Human Resources Administration, Special Services for Children, Bureau of Child Welfare and its Division of Inter-Agency Relationships
New York State Board of Social Welfare
New York State Department of Social Services
Plaintiff Description Plaintiffs are non-white Protestant children and New York taxpayers challenging the religious-based foster care programs in New York.
Indexed Lawyer Organizations Children's Rights, Inc.
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration not on record
Case Closing Year n/a
Case Ongoing No
Case Listing CW-NY-0001 : Marisol A. v. Giuliani (S.D.N.Y.)
Additional Resources
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Case Studies Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

  Making Child Welfare Work: How the R.C. Lawsuit Forged New Partnerships to Protect Children and Sustain Families
By: Bazelon Center for Mental Health Law (Bazelon Center)
Citation: (1998)
[ Detail ]

Docket(s)
No docket sheet currently in the collection
General Documents
Opinion 11/19/1974 (385 F.Supp. 1013) (S.D.N.Y.)
CW-NY-0005-0002.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 10/01/1980 (499 F.Supp. 980) (S.D.N.Y.)
CW-NY-0005-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
OPINION AND ORDER 10/08/1986 (645 F.Supp. 1292) (S.D.N.Y.)
CW-NY-0005-0004.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 05/24/1987 (848 F.2d 1338)
CW-NY-0005-0005.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 12/04/1989 (725 F.Supp. 1324) (S.D.N.Y.)
CW-NY-0005-0006.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Re: Petition for Rehearing 06/03/1992 (956 F.2d 1196)
CW-NY-0005-0007.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 02/23/1994 (153 F.R.D. 524) (S.D.N.Y.)
CW-NY-0005-0010.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 02/23/1995 (49 F.3d 69)
CW-NY-0005-0001.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 10/24/1997 (982 F.Supp. 264) (S.D.N.Y.)
CW-NY-0005-0009.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Opinion 06/18/1998 (1998 WL 323492) (S.D.N.Y.)
CW-NY-0005-0008.pdf | WESTLAW | Detail
Document Source: Westlaw
Memorandum Decision 07/01/1998 (1998 WL 355413) (S.D.N.Y.)
CW-NY-0005-0011.pdf | WESTLAW | Detail
Document Source: Westlaw
Opinion 03/31/1999 (185 F.R.D. 152) (S.D.N.Y.)
CW-NY-0005-0012.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Judges Cardamone, Richard J. (Second Circuit)
CW-NY-0005-0007
Mansfield, Walter Roe (Second Circuit, S.D.N.Y.)
CW-NY-0005-0002
Newman, Jon Ormond (Second Circuit, D. Conn.)
CW-NY-0005-0001 | CW-NY-0005-0005
Ward, Robert Joseph (S.D.N.Y.)
CW-NY-0005-0003 | CW-NY-0005-0004 | CW-NY-0005-0006 | CW-NY-0005-0008 | CW-NY-0005-0009 | CW-NY-0005-0010 | CW-NY-0005-0011 | CW-NY-0005-0012
Monitors/Masters None on record
Plaintiff's Lawyers None on record
Defendant's Lawyers None on record
Other Lawyers None on record

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