Wilder v. Bernstein

848 F.2d 1338 (2nd Cir. 1988)

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Nature of the Case

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Facts

P is a class of Black Protestant children and D is a group of New York City officials responsible for the City's childcare system. Under D's system of childcare, it relies heavily on private agencies. Most of those agencies are religiously affiliated. These agencies place the child either with a foster family or in an institution run by the agency. About 90% of the per diem expenses of the children are paid to the agencies from federal, state, and city funds. The State Constitution provides that a child shall be placed when practicable in an institution or agency governed by the same persons or in the custody of the same person or the same religious persuasion as the child. This litigation initially challenged the state law provisions regarding this religious matching in connection with publicly funded childcare placements. The court ruled that this system did not have a solely secular purpose and did have an effect impermissibly to inculcate religion. However, the court reasoned that because the State was acting in place of the parents that this situation was no different than situations in which the state makes provision for religion in its prisons, hospitals, and military establishments. The court also considered a nonreligious agency approach with religious needs being arranged outside the agency and considered that situation hopelessly to entangle the state in religion. The lawsuit proceeded to determine if D's system violated the Constitution. P was concerned that the Catholic and Jewish facilities were better and that the Protestant children had to wait longer for placement and that when the Protestant children are placed with Catholic and Jewish facilities, their free exercise of religion was inhibited. A settlement was reached, and the parties approached the court for approval; that plan basically classified the agencies according to their expertise and then allowed children to be placed with them on a first come first serve basis according to the child's need with religion being one of the factors if a religious preference was stated. Each agency was to provide for comparable opportunities for children to practice their own religion. Some of the parties objected to the settlement by the court.