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WILDER v. BERNSTEIN

October 1, 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



The opinion of the court was delivered by: WARD

This is a civil action pursuant to 42 U.S.C. §§ 1983, 1985, 1986 and 28 U.S.C. §§ 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 *fn1" 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. §§ 2000d-2000d-4. Jurisdiction is asserted under 28 U.S.C. §§ 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.

 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. §§ 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 *fn2" 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 § 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 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. *fn3" 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. Sugarman, 385 F. Supp. 1013, 1029 (S.D.N.Y.1974) (three-judge court). In concluding its opinion the panel expressly stated that it was leaving, for further proceedings, other questions presented by the pleadings, including whether one or more of the New York constitutional or statutory sections, as implemented, deprived the plaintiffs of their first amendment or other federal constitutional rights. Id. The Wilder I plaintiffs moved for reconsideration and, on October 16, 1975, the court denied the motion.

 On March 3, 1978, after extensive discovery had taken place in Wilder I and after motions for partial summary judgment by defendants and for class action certification by plaintiffs had been made, the action presently before the Court ("Wilder II ") was commenced by the New York Civil Liberties Union, co-counsel for the plaintiffs in Wilder I. In the original complaint in the instant action, two black children in need of child-care services, appearing by their mothers and next friends, joined with four New York taxpayers to challenge the religiously based New York child-care system and the laws upon which it is based. The complaint was subsequently amended twice, on April 17, 1978 and again on November 16, 1978, to add two additional children as plaintiffs, additional defendants and three additional adult plaintiffs who had formerly been in need of child-care placement. After the Wilder I action was reassigned to this Court and after the complaint in the instant action had been filed, the troublesome procedural posture of Wilder I became apparent. Upon the Court's suggestion an order was submitted by the parties and signed on June 2, 1978 dismissing Wilder I without prejudice, under certain stated conditions. *fn4"

 Plaintiffs in the instant action challenge, as did the plaintiffs in Wilder I, the religious matching provisions *fn5" and the related funding provisions *fn6" of the New York State Constitution, Social Services Law and Family Court Act, on their face and as applied, as violating the establishment and free exercise clauses of the first amendment. They also assert that the challenged laws and defendants' practices in providing child-care services necessarily result in a mandatory preference for religiously based (as opposed to nonsectarian) services, *fn7" infringement of the free exercise rights of black Protestant and other children, unequal access to services for black Protestant children, the favoring of religion over non-religion, *fn8" and racial and religious discrimination and segregation in child-care services.

 Discussion

 The motions to dismiss presently before the Court are premised upon several grounds. Initially, defendants seek dismissal of all the second amended complaint's allegations that the New York constitutional and statutory provisions governing New York City's child-care system are unconstitutional on their face. Defendants base this branch of their motions upon the decision of the three-judge court in Wilder I, supra, 385 F. Supp. 1013, which was adopted by this Court pursuant to paragraph 2 of its order of June 2, 1978, dismissing Wilder I without prejudice upon conditions. *fn9" Defendants also seek a dismissal of all allegations of racial and religious discrimination against the individual defendants on the ground that the second amended complaint fails to state that any of them purposefully and intentionally discriminated against plaintiffs. Finally, defendants urge the dismissal of the taxpayer plaintiffs' claims on the grounds that the issue they raise has already been adversely decided by the three-judge panel in Wilder I and that plaintiffs lack standing to raise claims not decided by Wilder I. The Court will address these arguments in turn.

 a. Motions to dismiss first amendment claims

 Although plaintiffs concede that the Wilder I decision is to be given stare decisis effect with respect to those statutes and state constitutional provisions actually ruled on by that court, they argue that it is not dispositive with respect to those statutes which they attack here both on their face and as applied but which were not challenged in the Wilder I complaint. Plaintiffs point specifically to New York Social Services Law §§ 373(7), 374-b, 374-c & 398(6)(g), New York Family Court Act §§ 116(g) & 252 and New York City Administrative Code, Chapter 24, Title 603-6.0. *fn10" The Court is unable to limit the effect of the Wilder I decision in the manner plaintiffs urge.

 In rendering its decision the three-judge court in Wilder I specifically indicated that it was necessary to consider the New York laws governing child care as "one ...


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