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October 27, 1982

VINCENT RUIZ, infant, individually and on behalf of all others similarly situated by his parent, SOFIA CASTILLO, Plaintiffs, against BARBARA BLUM, as Commissioner of the New York State Department of Social Services, THE HUMAN RESOURCES ADMINISTRATION OF THE CITY OF NEW YORK, and JAMES A. KRAUSKOPF, as Commissioner of the New York City Department of Social Services and Administrator of the Human Resources Administration, Defendants.


In this action plaintiffs challenge the practice of the State of New York ("the State") and the City of New York ("the City") in determining eligibility for publicly funded day care services. The plaintiffs contend that the policy and practice of denying day care benefits to otherwise eligible children who are United States citizens, or non-citizen children who are lawfully present in the United States, but whose parents cannot supply a Social Security number or other proof of their lawful resident alien status, violate applicable federal and state laws and the Fourteenth Amendment to the United States Constitution.

The action was instituted on behalf of Vincent Ruiz ("Vincent"), an infant five years of age, by his mother, Sofia Castillo, individually and on behalf of a purported class similarly situated primarily for a declaratory judgment and injunctive relief pursuant to 28 U.S.C., sections 2201 and 2202, and 42 U.S.C., sections 1981 and 1983. The mother is an alien who came to the United States from Colombia, South America, in 1977 under a one-year visitor's visa. Vincent was born in August 1977 in New York City and so is a native born citizen of the United States. *fn1" His mother, who is employed as a housekeeper, is the payee of a grant of Aid to Families with Dependent Children ("AFDC") for Vincent.

Ms. Castillo applied to the New York City Department of Social Services, one of the defendants herein, for day care services for her son based upon her employment. Her application was granted and day care services were provided to Vincent, and he began attending the New York Foundling Hospital Day Care Program. The approval was for a six-month period subject to proof of eligibility for continued payments based upon her lawful presence in the United States. After making payments for a period of time, the City, in August 1980, determined to discontinue further payments because she had failed to present a Social Security number or otherwise document her status as a legal resident of the United States. The fact is that she cannot do so because her one-year visitor's visa has long expired and her continued presence in the United States is illegal. Upon a "fair hearing" *fn2" review by the Commissioner of the New York State Department of Social Services, the City's determination was upheld. Thereupon day care services were terminated on January 31, 1981. However, they were restored pending determination of this suit.

 The complaint alleges violations of the infant plaintiff's rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, the Social Security Act *fn3" and the New York State Social Services Law *fn4" and regulations. *fn5" Class certification of the action is sought pursuant to Rule 23(a) and 23(b) (2) of the Federal Rules of Civil Procedure, the class to be defined as all United States citizens or legally resident children who have been, are, or will be denied day care services solely because a parent is unable to provide proof of his or her lawful alien status. The defendants oppose such certification, as well as the definition of the proposed class. Each side moves for summary judgment pursuant to Rule 56 of the Rules. The parties are in agreement that there are no disputed fact issues and that the matter is ripe for summary judgment disposition, which we now address.

 Funding for day care services *fn6" is provided by a combination of federal, state and city revenues. The bulk of financial support comes from the Federal Government. *fn7" New York State's share of federal moneys for providing social services includes "day care" allowances under Title XX *fn8" of the Social Security Act ("the Act"). *fn9" The Act authorizes appropriations to states for the purpose of encouraging them to furnish such services towards fulfilling one or more of the following goals: *fn10"

 (1) achieving or maintaining economic self-support to prevent, reduce, or eliminate dependency;

 (2) achieving or maintaining self-sufficiency, including reduction or prevention of dependency;

 (3) preventing or remedying neglect, abuse, or exploitation of children and adults unable to protect their own interests, or preserving, rehabilitating or reuniting families;

 (4) preventing or reducing inappropriate institutional care by providing for community-based care, home-based care, or other forms of less intensive care; and

 (5) securing referral or admission for institutional care when other forms of care are not appropriate, or providing services to individuals in institutions.

 The State, as a participant in the federal program, has adopted its purposes and has authorized its public welfare officials to provide day care at public expense for resident children. *fn11" The day care program is not an entitlement program -- that is, services are provided based upon availability of funds as well as eligibility. *fn12"

 Pursuant to the Social Services Law, the State Department of Social Services promulgated implementing regulations which establish a two-pronged eligibility test for participation in publicly funded day care services. One requirement is financial eligibility. This criterion is satisfied by persons who are eligible for other public assistance programs, including aid to dependent children. *fn13" Thus plaintiffs satisfy this requirement. The other component, referred to as programmatic eligibility, relates to the social need for services. The programmatic eligibility requirements for day care services generally fall into three categories; (1) where they are a necessary part of a plan of self-support for the parent *fn14" who is employed or seeking employment (work-related); *fn15" (2) as part of a plan to achieve or maintain self-sufficiency, including the reduction or prevention of dependency and maintenance of the family unit where because of illness the parent is unable to provide such care (non-work-related; *fn16" and (3) for other reasons not germane to the issues here presented. *fn17" Ms. Castillo's application for day care services stated the service was required because she was employed and thus it came under the work-related category of the programmatic eligibility requirement.

 Ms. Castillo's satisfaction of these eligibility criteria is not in dispute.Rather, the issue here centers about an additional requirement with respect to residence that is imposed by defendants on applicants who satisfy the programmatic and financial eligibility tests. That requirement derives from a state regulation *fn18" ("the regulation"), and a City policy parallelling it, *fn19" that renders ineligible for day care services any alien who is unlawfully residing in the United States, or who fails to furnish evidence that he or she is lawfully residing in the United States. As applied by the defendants, in instances where the alien cannot satisfy the lawful residence requirement, day care services are denied to otherwise eligible children who are either born in the United States and as such are citizens, or lawfully resident aliens but whose parents are illegally here, and the reason for requesting day care is that the parent is working.

 Plaintiffs do not challenge the facial validity of the regulation but rather the manner in which it was applied in this instance and is and has been applied in like instances. They stress that by the regulation's plain language its exclusionary effect is limited to the parent who cannot document his or her legal status here -- in this instance, Vincent's mother. They contend that the regulation cannot be considered solely with respect to ...

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