National Center for Youth Law

STRATEGIES

Wilder v. Bernstein
also known as Wilder v. Sugerman

This class action was filed on behalf of black, Protestant children in need of foster care in New York City. Plaintiffs alleged that religiously affiliated childcare agencies provided foster care services with public funds in violation of the Establishment and Free Exercise Clauses of the First Amendment, and that policies of racial and religious matching of foster children denied equal access to services in violation of the Equal Protection Clause.

Overview

FILE NO., COURT AND DATE FILED

78 Civ. 957 (S.D.N.Y., June 14, 1973)

CITATIONS

385 F. Supp. 1013 (S.D.N.Y. l974) (three-judge court); 499 F. Supp. 980 (S.D.N.Y. 1980); 645 F. Supp. 1292 (S.D.N.Y. 1986), aff’d, 848 F.2d 1338 (2d Cir. l988); 725 F. Supp. 1324 (S.D N.Y. 1989), reversed by 944 F.2d 1028 (2d Cir. 1991), vacated on reh’g by 965 F.2d 1196 (2d Cir. 1991), cert. denied, 506 U.S. 954 (1992); 1994 WL 30480 (S.D.N.Y. Jan. 28, 1994) (unreported); 153 F.R.D. 524 (S.D.N.Y. 1994), appeal dismissed by 49 F.3d 69 (2d Cir. 1995); 975 F. Supp. 276 (S.D.N.Y. 1997), reconsideration denied by 982 F. Supp. 264 (S.D.N.Y. 1997); 1998 WL 323492 (S.D.N.Y. Jun. 18, 1998) (unreported); 1998 WL 355413 (S.D.N.Y. Jul. 1, 1998) (unreported)

ATTORNEY FOR PLAINTIFFS

Susan Lambiase
Marcia Robinson Lowry
Children’s Rights, Inc.
404 Park Avenue South, 11th Floor
New York, NY 10016
(2l2) 683-2210
slambiase@childrensrights.org

ATTORNEYS FOR INTERVENORS

Donald Cohn
425 Park Avenue, 21st Floor
New York, NY 10022
(212) 355-1444

HISTORY AND STATUS

Plaintiffs settled in l986 after the parties and an intervening group of non-sectarian agencies agreed on a stipulation that mandated widespread reform of New York City’s foster care system to improve the quality of services available to all children. In addition to eliminating discrimination and protecting free exercise rights, the stipulation required professional evaluations of children when they come into care; rational placement of children on a first come, first served basis; a system for ranking the comparative quality of agencies; and “meaningful access” for foster children to family planning and abortion. The district court approved the settlement on April 28, l987. On June 8, 1988, over the objections of the sectarian agencies, the Second Circuit upheld the settlement.

Plaintiffs filed a contempt motion on July 14, 1993, citing violations of the settlement. An October 1994 evaluation pilot project resolved one portion of the contempt motion. The court declined to hold defendants in contempt with regard to foster children placed with relatives because it found that these children did not come within the scope of the settlement.

In 1996, plaintiffs used the Wilder settlement to block the implementation of a poorly planned managed care system unless and until the city could demonstrate that the plan would not harm foster children.

In 1998, the Wilder consent decree obligations were incorporated into a court-ordered settlement agreement reached by the same plaintiffs and the same city defendants in Marisol v. Pataki. As part of the Marisol settlement regarding New York City’s child welfare system, an advisory panel of child welfare experts monitored the Wilder obligations and issued recommendations. The city defendants’ settlement in Marisol concluded successfully in 2001. Plaintiffs continue to monitor the state defendants’ compliance with the parties’ settlement agreement.