848 F.

2d 1338
56 USLW 2725

Shirley WILDER, et al., Plaintiffs-Appellees,

v.
Blanche BERNSTEIN, Individually and as Administrator of
the
New York City Human Resources Administration, et
al., Defendants-Appellees,
Abbott House, et al., Intervenors-Appellees,
Paula Rabinow, Individually and as Director of the Joint
Planning Service, et al., Appellants.
Nos. 1404, 1405 and 1406, Dockets 87-7406, 87-7408 and 87-7410.

United States Court of Appeals,

Second Circuit.
Argued June 24, 1987.
Decided June 8, 1988.

Andrew Irving, New York City (Michael N. Rosen, Maxine Fass,

Robinson, Silverman, Pearce, Aronsohn & Berman, New York City, on
the brief), for appellant Goldsmith.
Gerald E. Bodell, New York City (Bodell & Gross, New York City, on
the brief), for appellants Schneider, Levine, Trobe, Demartino, Rabinow,
Barry, Sheridan, Starace, and Quinn.
Richard E. Nolan, New York City (James S. Goddard, Davis Polk &
Wardwell, New York City, on the brief), for appellants Howard,
Francene, Sheila, Apers, O'Neill, White, McCormack, Breen, Foley,
Chillion, McNaughton, James, Chrysostom, Fogarty, Wallace, Fontaine,
McMahon, Patrick, Mary Sheila, Trager, Meaney, Olivia, Harris, and
Altheimer.
Marcia Robinson Lowry, New York City (Christopher A. Hansen, David
B. Goldstein, American Civil Liberties Union, New York City, on the
brief), for plaintiffs-appellees.

Elizabeth Dvorkin, New York City (Peter L. Zimroth, Corp. Counsel,

Leonard Koerner, June A. Witterschein, Diane J. Morgenroth, Lucy A.
Cardwell, New York City, on the brief), for municipal defendantsappellees.
Mark J. Bunim, New York City (Ivy S. Fischer, Ohrenstein & Brown,
New York City, on the brief), for defendant-appellee Kaufman.
Stephen Wise Tulin, New York City (Polier, Tulin, Clark & Zalk, New
York City, Donald J. Cohn, Seth M. Lahn, Webster & Sheffield, New
York City, on the brief), for intervenors-appellees.
Joseph W. Bartlett, Gaston Snow Beekman & Bogue, New York City,
filed a brief for amici curiae Federation of Protestant Welfare Agencies, et
al., and a brief for amici curiae Community Service Soc. of New York, et
al.
Beth Otten, Roger K. Evans, Dara Klassel, New York City, Laura R.
Rockett, Raggio, Jaffe & Kayser, New York City, filed a brief for amici
curiae Planned Parenthood Federation of America, Inc. and Planned
Parenthood of New York City Inc.
Before NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.
JON O. NEWMAN, Circuit Judge:

This appeal challenges the settlement of a class action that effects major
changes in the way New York City discharges its obligations to arrange for the
care of children requiring placement in institutions and foster homes. Because
New York City has historically contracted with religiously affiliated child care
agencies to provide placement for most of the children requiring institutional
and foster home settings and because New York law provides for religious
matching of children and sectarian child care agencies, the lawsuit posed
troublesome issues arising under both the Establishment of Religion and the
Free Exercise of Religion Clauses of the Constitution. The suit also raised
serious issues under the Equal Protection Clause and related statutes arising
from alleged inequality of treatment based on the race of the children. The
settlement has been achieved between the plaintiffs, representing a class of
Black Protestant children, and the defendant municipal officials responsible for
the City's child care system (collectively "the City"). The settlement has also
been agreed to by a group of private child care agencies, which intervened in
the District Court, initially to oppose the settlement. The settlement was

opposed in the District Court and now on appeal by a group of administrators of

private child care agencies that characterize themselves as "Catholic and Jewish
affiliated" agencies. Brief for Defendants-Appellants Schneider et al. at 1.
These administrators (hereinafter "the sectarian agencies") were defendants in
the District Court but were dismissed as parties when the settlement was
approved. Officials of New York State, who were defendants, were dismissed
as parties after advising the District Court that they had withdrawn their
objections to the settlement.
2

The appeal, brought by the sectarian agencies, is from the April 28, 1987,
judgment of the District Court for the Southern District of New York (Robert J.
Ward, Judge), giving final approval to the settlement. The settlement had been
initially approved by Judge Ward on October 8, 1986, subject to compliance
with four conditions. The final judgment ruled that the conditions had been
met. Judge Ward's opinion giving initial approval to the settlement, reported at
645 F.Supp. 1292, is notable for its thoroughness, craftsmanship, scholarship,
and sensitivity to the issues presented. Familiarity with that opinion is not only
assumed, it is virtually indispensable to an understanding of this appeal. Indeed,
in light of its thoroughness, we need only summarize the complex background
of this litigation and the provisions of the settlement before turning to the
appellants' contentions.

Background
3

Under New York law children are "placed" in institutions or foster care homes
by one of two procedures. Some are taken away from their parents upon a
finding by the Family Court of abuse or neglect, N.Y. Family Court Act, Art. 10
(McKinney 1983); others are voluntarily committed by parents, N.Y. Soc. Serv.
Law Sec. 384-a (McKinney 1983). In both situations the child is placed in the
custody of the New York City Commissioner of Social Services. About 17,000
children are currently in placement.

New York City has the option of caring for these children in its own facilities
or contracting with private agencies. In pursuance of a long tradition, it has
elected to rely heavily on private agencies. At present more than 90% of the
children are placed through private agencies. The City contracts with some 60
private agencies. Most of them are religiously affiliated. These agencies place
the child either with a foster family or in an institution run by the agency,
depending on the child's needs. About 70% of the children are in foster homes.
About 90% of the per diem expenses of the children are paid to the agencies
from federal, state, and city funds.

The religious matching aspect of New York's child care scheme is set forth in
state constitutional and statutory provisions. The State Constitution provides
that a child shall be placed "when practicable, in an institution or agency
governed by persons, or in the custody of a person, of the same religious
persuasion as the child." N.Y. Const. art. 6, Sec. 32 (McKinney 1987). The
primary implementing statute provides that a commitment shall be made "when
practicable, to an authorized agency under the control of persons of the same
religious faith as that of the child." N.Y. Soc. Serv. Law Sec. 373(1)
(McKinney 1983). The statute further provides that it shall be applied "so far as
consistent with the best interests of the child" and "where practicable ... so as to
give effect to the religious wishes" of the parents. Id. Sec. 373(7). In the
absence of the parents' expressed wishes, "it shall be presumed that the parent
wishes the child to be reared in the religion of the parent." Id.

These religious matching provisions were authoritatively construed by the New

York Court of Appeals in 1972. In re Dickens v. Ernesto, 30 N.Y.2d 61, 330
N.Y.S.2d 346, 281 N.E.2d 153, appeal dismissed for want of substantial federal
question, 407 U.S. 917, 92 S.Ct. 2463, 32 L.Ed.2d 803 (1972). Considering the
provisions in the context of an adoption, the Court said that the statutes "place[
] primary emphasis on the temporal best interests of the child, although the
religious preference of the natural parents remains a relevant consideration." Id.
at 66, 330 N.Y.S.2d at 348, 281 N.E.2d at 155. "[R]eligion," the Court
continued, "is but one of many factors in the placement of a child," and a
religious placement, "though desirable, is not mandatory." Id. at 65-66, 330
N.Y.S.2d at 348, 281 N.E.2d at 155.

The pending litigation, brought initially to challenge the state law provisions
regarding religious matching in connection with publicly funded child care
placements, was initiated in 1973. Subsequently, a three-judge district court
was convened pursuant to 28 U.S.C. Sec. 2281 (repealed 1976). The threejudge court confined its decision to the facial validity of the challenged state
constitutional and statutory provisions and concluded that they did not violate
the Establishment Clause of the First Amendment. Wilder v. Sugarman, 385
F.Supp. 1013 (S.D.N.Y.1974) (per curiam) (Wilder I ). Since the Court's
reasoning bears on issues raised in the pending appeal, it must be set forth, at
least briefly.

The Court initially analyzed the Establishment Clause claim under the threepart test of Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29
L.Ed.2d 745 (1971):

9First, the statute must have a secular legislative purpose; second, its principal or

primary effect must be one that neither advances nor inhibits religion, Board of
Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060
(1968); finally, the statute must not foster "an excessive government entanglement
with religion." Walz [v. Tax Commission, 397 U.S. 664,] 674 [90 S.Ct. 1409, 1414,
25 L.Ed.2d 697 (1970) ].
10

Viewing the state law provisions for funding and religious matching as part of
an integrated scheme, the three-judge court in Wilder I concluded that the
scheme did not have a solely secular purpose and did have an effect that, "
[a]bsent countervailing circumstances, ... could be to impermissibly inculcate
religion." 385 F.Supp. at 1023-24. However, the Court concluded, such
countervailing circumstances arose out of the State's obligation, once it
accepted the responsibility for caring for the children in the place of their
parents, to enforce the parents' right to determine the religious upbringing of
their children, see Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69
L.Ed. 1070 (1925), and to assure the children's rights under the Free Exercise
Clause, see Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87
L.Ed. 1628 (1943). The Court analogized the situation to a state's responsibility
to make provision for the religious needs of those in its care in prisons,
hospitals, and military establishments. See Cruz v. Beto, 405 U.S. 319, 322 n.
2, 92 S.Ct. 1079, 1081 n. 2, 31 L.Ed.2d 263 (1972) (per curiam) (prisons);
Katcoff v. Marsh, 755 F.2d 223, 234-35 (2d Cir.1985) (military); Carter v.
Broadlawns Medical Center, 667 F.Supp. 1269, 1280-81 (S.D. Iowa 1987)
(hospital); see also Abington School District v. Schempp, 374 U.S. 203, 29698, 83 S.Ct. 1560, 1610-11, 10 L.Ed.2d 844 (1963) (Brennan, J., concurring).
Finally, the Court considered the suggestion that the State could fulfill its
obligations toward the parents and the children by placing the children in the
care of non-religious agencies and then arranging for the religious needs of the
children to be met outside the purview of the child care agencies. That option,
the Court believed, would itself encounter Establishment Clause concerns
because the State would become "hopelessly entangled in religion." 385
F.Supp. at 1029. Thus, obviously sensitive to the tension between the
Establishment and the Free Exercise Clauses no matter how New York chose to
meet the religious needs of children in its care, the Court upheld the statutory
scheme on its face and deferred for further proceedings inquiry as to whether
the implementation of any aspect of the scheme violated the Constitution.

11

After the decision in Wilder I, discovery ensued, and the complaint was
amended several times. Ultimately a fourth amended complaint was filed in
1983, which set forth four claims that awaited trial at the time of the settlement.
These were that the City's child care scheme (1) discriminates on the basis of
race in that Black children are placed in disproportionately low numbers in

Catholic and Jewish agencies, which tend to be the agencies that are better
funded and provide higher quality services, (2) discriminates on the basis of
religion in that, among other things, Protestant children wait longer for
placement and are placed in inferior programs compared with Catholic and
Jewish children, (3) involves an excessive entanglement of government with
religion that violates the Establishment Clause, and (4) infringes the Free
Exercise rights of Protestant children in that, among other things, there are no
agencies operated by members of most of the Protestant sects and that
Protestant children are chilled in the exercise of their own religion when placed
in the care of Catholic and Jewish agencies. The matters alleged in the Fourth
Amended Complaint were claimed to violate the First and Fourteenth
Amendments, Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d
(1982), and New York antidiscrimination regulations, 18 N.Y.C.R.R. Secs.
303.1, 303.2 (1978).
12

In April 1984 the plaintiffs and the City defendants presented a proposed
settlement for approval by the District Court pursuant to Fed.R.Civ.P. 23(e).
Judge Ward directed that notice of the proposal be given to members of the
plaintiff class and subsequently granted leave to nineteen child care agencies to
intervene for the purpose of opposing the settlement. Thereafter the Court
received detailed submissions concerning the settlement proposal from the
parties, from organizations of child care professionals, and from knowledgeable
individual experts. Hearings on the proposal began in August 1984 and
continued intermittently as the proposal was revised in response to some of the
objections. In January 1985 a revised proposal was submitted to the Court.
After notice to the plaintiff class, this proposal was the subject of a hearing in
March 1985. Prior to this hearing the State defendants had withdrawn their
objections to the proposal. The intervenors withdrew their objections, subject to
agreement on the identity of a child care expert who would perform certain
tasks in the implementation of the settlement. Once agreement on that person
was secured, the settlement was signed by the plaintiffs, the City defendants,
defendant Kaufman (the administrator of Ohel Children's Home, an Orthodox
Jewish agency), and the nineteen intervenors. On October 8, 1986, Judge Ward
issued his opinion approving the settlement, subject to the fulfillment of certain
obligations by some or all of the signatories. Once satisfied that these
conditions, which are not relevant to this appeal, had been met, Judge Ward
entered a final judgment approving the settlement and dismissing with prejudice
the defendant sectarian agencies, all of whom had remained opposed to the
settlement. These agencies, all Catholic and Jewish, are the sole appellants.
Though not signatories to the settlement and not bound as parties by the
judgment, they were parties in the underlying lawsuit and remain vitally
interested in the judgment because they will be substantially affected by its

implementation should they choose to remain participants in the City's program

of purchasing child care services from private agencies. Cf. Marino v. Ortiz, --U.S. ----, ----, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (persons who were
never parties in district court and failed to intervene may not appeal settlement
of class suit).
The Settlement
13

The settlement proclaims its purposes to be the assurance of placement of

children without racial or religious discrimination and "appropriate" recognition
of preferences for religious matching in a manner consistent with federal and
state constitutions, statutes, and regulations. These purposes are implemented
by an elaborate plan for child placement that requires the City to place children
on a first-come, first-served basis, with a preference for religious matching
honored only to the extent that it does not give a child greater access to a
program appropriate for his needs over other children for whom the program is
also appropriate but who earlier became candidates for placement.

14

The settlement recognizes that its attempt to provide equal opportunities for
placement requires some system for determining the relative quality of various
agencies that provide the services appropriate for any particular child. To this
end, the settlement provides for classification of agencies and programs by one
or more expert consultants to be selected by the City with the participation of
plaintiffs' counsel and the signatory and nonsignatory agencies.

15

Once the classification has been made, the City will be required to place a child
in the best available program appropriate for the child's needs. If the parents
express a preference for a religious matching placement, the City will be
required to place the child in the best available program of an agency with the
preferred religious affiliation, provided there is a vacancy. If no vacancy exists,
the parent then has a three-fold option: (a) having the child wait until there is a
vacancy in the best "in-religion" program, (b) having the child placed in the
next best "in-religion" program, or (c) having the child placed in the best
available "out-of-religion" program. The preference of a child over fourteen is
to be given serious consideration. Exceptions to the first-come, first-served
principle may be made for "compelling therapeutic reasons."

16

The settlement also permits an exception from its basic pattern to be made for
children whose parents request placement in programs "specially designated"
by the City to care for children of religious groups with "adherents whose
religious beliefs pervade and determine the entire mode of their lives,
regulating it with detail through strictly enforced rules of the religion." The

plaintiffs and the City contemplate that the Ohel Children's Home, which
provides child care in an Orthodox Jewish setting, would be an agency falling
within this category.
17

In order to meet concerns arising under the Free Exercise Clause, the settlement
includes a "religious practices" section imposing requirements upon the City
and all contracting agencies. As summarized by the District Court:

18
Specifically,
each agency would provide "comparable opportunities" for children to
practice their own religion and observe religious holidays, would permit but not
require children in its care to attend religious or holiday observances on its premises,
would not impose religious dietary practices (to the extent practicable) on children
who do not wish to follow them, would provide benefits and privileges to children
without regard to religion, and would not convey religious tenets regarding family
planning except in the course of providing religious counseling. SSC [Special
Services for Children, the City's agency responsible for child placement] would
ensure that all children have "meaningful access to the full range of family planning
information, services and counseling" through the agency or an outside source or
both. Religious symbols would be permitted in children's rooms at their request;
agencies would not display "excessive religious symbols."
19

645 F.Supp. at 1306-07 (quoting stipulation for settlement) (citations to

settlement paragraphs omitted).

20

The settlement is to last for three years after full implementation of the
classification system or five years after entry of the stipulation on which the
settlement is based, whichever is sooner. This Court granted a partial stay of
the final judgment pending appeal, permitting the City to proceed with steps
preparatory to implementation of the settlement but deferring those aspects of
the settlement that change the placement system.

Discussion
21

The standards for assessing a consent decree in a class action are well known,
see Malchman v. Davis, 706 F.2d 426 (2d Cir.1983); City of Detroit v. Grinnell
Corp., 495 F.2d 448 (2d Cir.1974), and were faithfully applied by the District
Judge, see 645 F.Supp. at 1307-08. We focus our attention on the specific
objections pursued by the appellants on this appeal and also consider one
aspect of the decree--its enforceability--on our own motion. The appellants
advance essentially four objections to the settlement: (1) that it should not have
been approved in the absence of a prima facie case of discrimination because it
adopts race-conscious remedies, (2) that it violates New York requirements for

religious matching, (3) that it infringes the free exercise rights of the children
and their parents, and (4) that it will precipitate excessive entanglement
between government and religion in violation of the Establishment Clause.
22

1. Lack of evidence to justify race-conscious remedies. Appellants rely on

Kirkland v. New York State Dep't of Correctional Services, 711 F.2d 1117 (2d
Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984),
for the proposition that approval of a settlement containing race-conscious
remedies requires examination of whether "there is an existing condition which
can serve as a proper basis for the creation of" such remedies. Id. at 1129. The
requisite factual showing of discrimination warranting such remedies, they
contend, is lacking. The argument attacks a straw man, for nothing in the
settlement may fairly be characterized as a race-conscious remedy. There is no
requirement that any agency reserve a specific number of beds or foster homes
for members of any racial group, nor even that affirmative steps be taken for
the purpose of increasing the number of children of any racial group placed
with an agency. The purpose of the settlement is to insure that children are
placed in the best available facilities explicitly without regard to their race.
Nothing in the decree requires that any child be placed in any agency because
of that child's race. It may well be that observance of the first-come, firstserved principle will eliminate whatever racial discrimination, intentional or
inadvertent, may have been occurring in the past. But a remedy that precludes
consideration of race, thereby permitting placements with each agency to
approach, over time, the racial composition of the child care population, is the
antithesis of a race-conscious remedy.

23

The basis for the appellants' claim of race-conscious remedies is the

requirement that statistics be maintained as to the race and religion of the
children placed with each agency. Contrary to the appellants' contention, this
requirement is not intended to force each agency to take its proportionate share
of each racial and religious group. The statistics serve the entirely permissible
purpose of providing a basis for determining whether, despite the nondiscriminatory objectives of the decree, some discrimination is in fact
occurring.

24

Expanding their contention that the settlement adopts a race-conscious remedy,

the appellants contend that it will result in reverse discrimination of a type
proscribed by cases such as Regents of the University of California v. Bakke,
438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Since no quota has been
imposed upon any agency to take any prescribed number of children of any
particular race or religion, Bakke is not remotely applicable. Appellants' claim
of reverse discrimination is in reality only another way of describing the fact

that a prohibition against discrimination on the basis of race or religion tends

over time to result in a distribution among the relevant entities--here, child care
agencies--of members of racial and religious groups approximately proportional
to their numbers in the relevant population. It is a perversion of the term to call
this "reverse discrimination." To the extent that the appellants are really
complaining about the prospect that Catholic and Jewish children might be
placed in Catholic and Jewish agencies less frequently than occurred in the
past, the claim will be considered subsequently when appellants' Free Exercise
Clause contentions are examined.
25

2. Violation of New York religious matching requirements. Though not

decisive, we note preliminarily that the responsible litigating officers of New
York State have withdrawn their objections to the settlement, thereby casting
considerable doubt on appellants' claim that the settlement violates New York's
constitutional and statutory provisions for religious matching. As previously
pointed out, these provisions, as authoritatively construed by the State's highest
court, do not mandate religious matching in all circumstances. The principal
criterion for placement is the best interests of the child, a criterion the
settlement scrupulously observes. Moreover, the settlement requires that
religious matching be accorded a high priority in the placement decision. The
parents' preference for a religious placement must be honored unless such a
placement would be detrimental to the child's needs or the agency has no
opening. Even then, the parents' options include waiting for placement in the
best in-religion program or accepting immediate placement in the next best inreligion program with a vacancy.

26

The appellants' claim of state law violation centers essentially on the dynamics
of the settlement whereby in-religion placements in the best programs of
agencies affiliated with some religions will sometimes be unavailable because
those programs will be filled due in part to the influx of children of other
religions. In essence, appellants are contending that the only lawful way to
comply with New York's religious matching provisions is to permit each
religious agency either to maintain vacancies in its programs to accommodate
children seeking in-religion placements or at least, when full, to reject children
of other religions and limit its waiting list to children of its own religion. We
see nothing in the New York provisions, as construed in Dickens v. Ernesto,
supra, to support such an interpretation. Consonant with New York law, the
settlement accords priority to religious matching when placement opportunities
serving the child's best interests are available. State law does not require either
holding such opportunities open for children of a particular religion or
according such children an assured place at the head of an agency's waiting list.

27

3. Infringement of free exercise rights. We encounter the same difficulty faced

by Judge Ward in understanding precisely in what respect the appellants
contend that parents or children are likely to be denied their rights under the
Free Exercise Clause. Manifestly, nothing in the settlement in any way purports
to impair the right of any person to maintain his or her religious beliefs.
Enlisting Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965
(1963), and Hobbie v. Unemployment Appeals Commission, 480 U.S. 136, 107
S.Ct. 1046, 94 L.Ed.2d 190 (1987), the appellants appear to suggest that the
settlement somehow obliges parents or children to forgo some aspect of
religiously based conduct in order to obtain some governmental benefit. No
such conduct has been identified. The settlement does not oblige any child to
refrain from any aspect of religious observance, nor to take or refrain from
taking any step inconsistent with religious tenets.

28

The consequence of the settlement most criticized by the appellants is its

tendency to reduce the frequency of in-religion placements. Appellants do not
contend, however, that every child in need of institutional or foster care has a
constitutional right to have that care provided by an agency of the child's
religion. The context in which this lawsuit arose and has been settled differs
significantly from the context of religiously affiliated private education
voluntarily selected by parents. See Pierce v. Society of Sisters, supra. It is one
thing to recognize the right of parents to choose a religious school for their
children as a private alternative to meeting state-imposed educational
requirements in public schools. It is quite another matter, however, to suggest
that parents who are unable to fulfill their parental obligations, thereby obliging
the state to act in their stead, at their request or involuntarily, nonetheless retain
a constitutional right to insist that their children receive state-sponsored
parenting under the religious auspices preferred by the parents. So long as the
state makes reasonable efforts to assure that the religious needs of the children
are met during the interval in which the state assumes parental responsibilities,
the free exercise rights of the parents and their children are adequately
observed.

29

We agree with the appellants that the first-come, first-served principle is likely
to reduce the frequency of in-religion placements, especially with respect to
Catholic and Jewish agencies, because preferred agencies will sometimes have
no vacancies. This prospect, though doubtless contrary to the preferences of
many Catholic and Jewish parents whose children will require placement, is not
a denial of their free exercise rights. Indeed, as often happens in litigation
arising under the religion clauses of the First Amendment, it is the effort of the
settlement to safeguard the children's free exercise rights that encounters the
appellants' final objection concerning the Establishment Clause.

30

4. Establishment of religion. In considering appellants' final contention--that

the settlement violates the Establishment Clause--it is worth recalling that this
lawsuit was originally brought by plaintiffs who objected on establishment
grounds to the basic arrangement whereby New York City purchases child care
services from religiously affiliated private agencies. Not surprisingly, the
appellant agencies, who wish to continue receiving public funding for their
services under the scheme prevailing before the settlement, make no
establishment objection to their receipt of public funds. Instead, the appellants
contend that the settlement will precipitate a degree of entanglement between
government and religious agencies that exceeds the permissible limit of the
Establishment Clause. In making this argument, the appellants are obliged to
walk a very fine line. They accept the degree of state entanglement with
religion that accompanied the funding and placement scheme prior to the
settlement. They acknowledge, as did the three-judge court in Wilder I, that
when government discharges its responsibilities in the field of child care, in
substitution of parents unable to perform their parental duties, some
governmental activity that might otherwise overstep the Establishment Clause
becomes constitutionally permissible because of the need to vindicate the free
exercise rights of the children. At the same time, the appellants contend that the
particular arrangements contemplated by the settlement to assure the protection
of the children's free exercise rights require an extra degree of entanglement
that is constitutionally impermissible. In essence, appellants say the
entanglement that occurred before the settlement was at the allowable limit, but
whatever the settlement adds beyond the prior placement scheme goes too far.

31

In making this delicately balanced argument, the appellants do not precisely

identify the "extra" aspects of entanglement to which they object. They contend
generally that the settlement involves, "under the District Court's auspices,
either the City, the ACLU [which represents the plaintiff class], or both, in,
among other things, the placement of children in care of agencies under the
same religious auspices as the religion of the child, the determination of
parental preference as to religion, and the religious practices of children while
in care in voluntary agencies." Brief for Appellants Goldsmith et al. at 65-66.
Yet the appellants vigorously support the City's obligation under state law to
observe parental perferences for religious matching where "practicable." The
appellants do not indicate how the City is to assure that parental preferences for
religious matching are ascertained and honored to the extent "practicable"
without having the City "involved" in these matters. And while the appellants
appear to acknowledge that any program using public funds for child care
placements with religiously affiliated agencies must provide sufficient free
exercise safeguards to overcome establishment concerns, they do not identify
which aspects of the settlement they consider to be "extra" safeguards of free

exercise rights that will precipitate an impermissible degree of entanglement.

32

In making our own effort to determine whether the detailed provisions of the
settlement overstep the limits of permissible entanglement, we are guided by
two related considerations. First, the difference we have previously noted
between the contexts of private religious schools and of private religious child
care agencies has an important bearing on the entanglement issue. Private
religious schools are an option available to parents who choose not to educate
their children in public schools. The extent to which government may become
entangled in the affairs of those schools in the course of endeavoring to provide
financial assistance and other resources has been a continuing concern to the
Supreme Court in its effort to enforce the First Amendment precisely because
the state's extension of such financial assistance is gratuitous. The state entirely
discharges its obligation to the education of children by funding public schools
and affording parents the option of paying for religiously affiliated education
outside the public schools. In that context, the Supreme Court has drawn the
line against impermissible entanglement somewhat rigorously. See Aguilar v.
Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985); Meek v.
Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975); Lemon v.
Kurtzman, supra.

33

In the child care context, however, the state has a responsibility to act for the
parents when the parents are unable to discharge their own responsibilities. Yet
in exercising its responsibilities the state must take some steps to assure that the
religious needs of the children are met. Providing funds or other assistance for
this religious component of the parental obligations that the state has assumed
is not gratuitous. The state must either concern itself with the children's
religious needs directly or provide funds to assure that these needs are met
under the auspices of private agencies. There will be some degree of
entanglement however the state elects to discharge this responsibility. The
entanglement standard cannot be applied as rigorously in this context as in the
context of aid to private religious schools. Cf. Katcoff v. Marsh, supra, 755
F.2d at 234-35 (Establishment Clause standard applicable to attack on military
chaplaincy must account for "necessity of recognizing the Free Exercise rights
of military personnel"); Abington School District v. Schempp, supra, 374 U.S.
at 296-98, 83 S.Ct. at 1610-11 (Brennan, J., concurring) (establishment
concerns may need to give way to free exercise interests in military and prison
settings).

34

Second, the considerations that have impelled the Supreme Court to be rigorous
in setting entanglement limits in the religious school context have led to a
readiness to assess entanglement objections on the basis of what conduct is

likely to occur rather than what conduct has in fact occurred. That was the
approach taken in Aguilar, Meek, and Lemon. Since the state was under no
obligation to provide any resources in the context of religiously affiliated
education, the Court saw no need to accept the risk that provisions that
appeared to precipitate excessive entanglement would actually do so in practice.
In the context of child care, however, where the state is obliged to act one way
or the other to meet religious needs, it is entirely appropriate to accept some
risks and assess entanglement primarily on the basis of what occurs in fact, not
what is apprehended to occur. Indeed, to assess provisions in this context on the
basis of the entanglement that might occur runs the unacceptable risk of
invalidating some arrangements that would in practice be permissible, with the
ultimate result that the state's ability to meet the religious needs of the children
for whom it has undertaken to provide care will be seriously impaired. Of
course, even in the child care context some arrangements may so inevitably
lead to impermissible entanglement that there is no need to await their
implementation before recognizing their invalidity. The deficiency of such
provisions, however, will normally be readily apparent.
35

With these considerations in mind, we agree with Judge Ward that the
settlement on its face does not exceed an entanglement standard appropriate to
the context of state-sponsored child care in substitution of the responsibilities
of parents. We acknowledge that some of the provisions pose a risk of
excessive entanglement. For example, we are apprehensive about the
implementation of paragraph 70(9) of the settlement prohibiting agencies that
contract with the City from displaying "excessive" religious symbols. Sensitive
to the risk that this provision could be interpreted to lead to an unacceptable
degree of intrusion by City officials into the management of the property of
religious agencies, Judge Ward wisely narrowed the scope of the provision so
that it is enforceable only "where plaintiffs can demonstrate that a religious
symbol or aggregation of symbols displayed in the common areas of a child
care agency has the effect of impermissibly chilling the Free Exercise rights of
children in the agency's care." 645 F.Supp. at 1329.

36

Even that narrowed construction, however, does not eliminate the risk of
impermissible entanglement in the course of enforcing the provision.
Nevertheless, we do not believe the provision is inherently vulnerable, and we
believe it prudent to await whatever implementation of the provision may
occur, if any. It is by no means certain that the plaintiffs will even attempt to
require a detailed measurement of the extent to which religious symbols are
displayed, much less precipitate litigation as to whether the display of any
particular symbol can be said to be "excessive." In practice, the provision itself
may well be only a symbol, reminding the religious agencies that their

acceptance of public funds while providing services to children of different

religions carries with it an obligation to avoid proselytizing efforts that would
make the children feel uncomfortable and unwelcome and that would threaten
their rights under the Free Exercise Clause.
37

5. Enforceability of the decree. In addition to the objections of the appellants,

we raise on our own motion a concern as to whether in some respects the
provisions of the settlement are too imprecise to be included in an enforceable
decree. An injunctive order must be framed "so that those who must obey [the
order] will know what the court intends to require and what it means to forbid."
International Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade
Ass'n, 389 U.S. 64, 76, 88 S.Ct. 201, 208, 19 L.Ed.2d 236 (1967); see also
Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38 L.Ed.2d 661
(1974) (per curiam); Sanders v. Air Line Pilots Ass'n, Int'l, 473 F.2d 244, 247
(2d Cir.1972). Taking the religious symbols clause as an example, we have
grave doubts that an agency could "ascertain from the four corners of the order
precisely what acts are forbidden." Sanders v. Air Line Pilots Ass'n, Int'l, supra,
473 F.2d at 247.

38

As with the potential entanglement concerns, however, we do not believe that

the imprecision of some provisions of the decree renders them inherently
vulnerable. If in the course of implementation some provisions are sought to be
enforced, we will expect the District Court to consider carefully whether a
particular provision has sufficient specificity to give fair notice of its
requirements. With respect to any provision sought to be enforced in the
absence of such notice, we will further expect the District Court to proceed
initially by issuing an order to show cause why a defendant should not be
specifically enjoined from taking or failing to take precise steps within the
general contemplation of the provision alleged to have been violated. Contempt
sanctions would be available only upon a defendant's failure to comply with
such a particularized refinement of the decree. We adopt this two-step approach
to enforcement of the decree's less precise provisions in recognition of the fact
that the decree is qualitatively different from most injunctions. This decree does
not enjoin anyone from continuation of prior practices found to be illegal.
Instead, it is a blueprint to implement a broad change in municipal policy. The
decree is of limited duration and may well be implemented without any resort
to enforcement mechanisms. Surely that is an objective toward which all
concerned should strive.

Conclusion
39

For all of the reasons set forth above, and those more fully elaborated in Judge

Ward's opinion, the judgment of the District Court is affirmed.

CARDAMONE, Circuit Judge, dissenting:
40

The settlement reached in New York City's placement program for foster care
children will inevitably result in the excessive entanglement of church and
state. That conclusion is inevitable because the stipulation entered into between
plaintiffs, the City, and certain private child care agencies provides for
interaction in the administration of the foster care program which not only
permits but actually mandates a pervasive state presence in Catholic and Jewish
affiliated agencies that participate in the New York City program. This
pervasive presence established by the stipulation includes extensive monitoring,
enforcement provisions, record keeping and certain religious practice
provisions to be applied in the sectarian agencies. Since these provisions for a
state presence offend precisely those values at the core of the Establishment
Clause of the First Amendment, I must respectfully dissent. In other respects, I
join the majority's endorsement of the stipulation that is designed to improve
New York City's delivery of foster child care services.

41

* We may not fashion or approve a remedy for alleged racial and religious
discrimination that penetrates, as described by Jefferson, the "wall of separation
between Church and State." See Reynolds v. United States, 98 U.S. (8 Otto)
145, 164, 25 L.Ed. 244 (1878). There is no doubt that "[j]udicial caveats
against entanglement must recognize that the line of separation, far from being
a 'wall,' is a blurred, indistinct, and variable barrier depending on all the
circumstances of a particular relationship." Lemon v. Kurtzman, 403 U.S. 602,
614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971). Throughout the lengthy
course of this litigation, the district courts also have recognized that this wall
more resembles a moveable partition in a setting where the state in its role of
parens patriae must accommodate both free exercise rights of foster children
and establishment concerns of the service providers. See Wilder v. Sugarman,
385 F.Supp. 1013, 1026-27 (S.D.N.Y.1974) (per curiam) (Wilder I ) ("laws
which might otherwise be deemed violative of the Establishment Clause may
be upheld ... [if] reasonably necessary to satisfy Free Exercise rights....");
Wilder v. Bernstein, 645 F.Supp. 1292, 1329-39 (S.D.N.Y.1986) (Wilder III )
(same).

42

I agree with the majority that the Religious Clauses must be construed flexibly
to achieve the necessary "benevolent neutrality" by government toward
religion. Walz v. Tax Comm'n, 397 U.S. 664, 669, 90 S.Ct. 1409, 1411, 25
L.Ed.2d 697 (1970). My concern is that the amount of governmental activity
judicially permitted to satisfy conflicting constitutional demands has become so

great as to trample the Establishment Clause's prohibitions.

43

The third prong of the familiar Lemon test prohibits "excessive government
entanglement with religion." Lemon, 403 U.S. at 613, 91 S.Ct. at 2111 (quoting
Walz, 397 U.S. at 674, 90 S.Ct. at 1414). No doubt exists that "[a]bsent
countervailing Free Exercise interests [of children and parents] and obligations
[of the state], such involvement with religious concerns and the religious
aspects of sectarian institutions [as provided for in the stipulation] clearly
would create an impermissible entanglement of state and church." Wilder III,
645 F.Supp. at 1338. The only critical Establishment Clause issue arising from
the stipulation is "whether the [disputed] terms ... are reasonably necessary to
protect the countervailing Free Exercise interests of children in the foster care
system." Id.

44

The sectarian agencies persuasively contend that the stipulation creates an

additional, impermissible layer of state involvement in private religious agency
practices as compared to the existing statutory scheme. Specifically, the New
York Human Resources Administration, through its Special Services for
Children Agency (SSC), will maintain detailed records as to the religious
agencies' placement activity by religion (p 62-68), adopt policies to ensure the
Free Exercise rights of all foster children at agencies (p 70), prevent agencies
from displaying "excessive religious symbols" (p 70(9)), and grant the
American Civil Liberties Union and other private plaintiffs the right to compel
enforcement of the stipulation (p 75).

45

More particularly, those provisions of the stipulation that tread impermissibly

on First Amendment rights are those which involve the imposition and
enforcement of certain conditions designed to protect the religious practices of
foster children in religious oriented institutions. A more detailed account of the
specific objectionable provisions is unnecessary in light of the fact that "[a]ll
parties acknowledge that the settlement contemplates additional administrative
or monitoring functions to be performed by the SSC, the settlement panel and,
to some extent, the Court." Wilder III, 645 F.Supp. at 1334.

II
46

The majority justifies the additional entanglement outlined in the stipulation by

distinguishing education from child care, by restricting consideration of
possible Establishment Clause infirmities only to conduct that will inevitably
occur, by crafting a judicial narrowing of the scope of p 70(9), and by
speculating that p 70(9) will not actually be enforced in practice.

47

Concededly, the state's obligation in the child care context does distance this
case to some degree from Aguilar and Grand Rapids, which tolerate virtually
no entanglement in the private religious education context. Aguilar v. Felton,
473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985); Grand Rapids School
Dist. v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985). But the
ingenious devices drawn by the majority to revise the stipulation in the face of
remaining entanglement problems instead simply reveal their excessiveness.
First, if the display of religious symbols only becomes excessive when Free
Exercise rights are actually violated, as the majority holds by endorsing the
district court's narrowing of the religious practices and enforcement provisions
(paragraphs 70(9) and 75), then the stipulation itself should reflect this
construction. No matter how p 70(9) is narrowed, the determination of whether
particular religious symbols violate a child's Free Exercise right involves an
unconstitutional state inquiry into religious practices. Second, rather than base
approval of questionable provisions on the prediction that they will not be
enforced, the stipulation should be remanded to the district court to excise those
provisions.

48

The overburdensome entanglement is easily illustrated. The City or a plaintiff

is entitled under p 70(9) and p 75 to protest and obtain the removal of a
religious agency's use of its religious symbols. In this case, for example, a Star
of David or the Cross point beyond themselves to express faith in the source of
that which is of ultimate concern. The stipulation's grant of state power to order
the sectarian agencies to remove fundamental expressions of their faith totally
obliterates the barrier that must be maintained between church and state.

49

The stipulation reflects an unbalanced preoccupation with Free Exercise rights,

which leads to impermissible entanglement under the Establishment Clause.
The proposed state involvement in the religious affairs of foster children comes
dangerously close to the "custom-tailoring" of each child's religious training
and observance that the district court initially recognized would involve
"hopelessly" excessive entanglement. Wilder I, 385 F.Supp. at 1029.

50

There is, of course, the danger of creating a "Catch-22" paradox "whereby aid
must be supervised to ensure no entanglement but the supervision itself is held
to cause an entanglement." Aguilar, 105 S.Ct. at 3243 (Rehnquist, J.,
dissenting); see Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 2491, 86
L.Ed.2d 29 (1985) (Rehnquist, J., dissenting); Wilder III, 645 F.Supp. at 1334
n. 32. Here, the potential trap is that any mechanisms created to guard Free
Exercise rights might inevitably entail excessive entanglement. In private
religious education cases, like Aguilar and Grand Rapids, the problem can be

avoided by eliminating the aid and the entanglements. In the foster child care
context, the social services provided are required by the state constitution and
state law and the solution is inevitably more delicate.
III
51

Of course, as the majority notes, the sectarian agencies receive public funding
for the services they provide to foster care children. But the religious cost for
this funding, as contemplated in the stipulation, is that these religiously
affiliated agencies are compelled against their will to put themselves into the
hands of the plaintiffs who may--with the power of state exercised by means of
a court order--force them to stop displaying the symbols of their faith. The
majority rationalizes this unconstitutional provision by saying that it is not
certain that plaintiffs will ever exercise such right. It then observes that the
provision in the stipulation itself is a "symbol" reminding the sectarian agencies
of the price they pay upon acceptance of public funds. It is ironic that the
majority characterizes the restriction on displays of religious symbols itself as a
"symbol" or reminder that acceptance of public funds carries with it the
obligation of religious neutrality. The attempt to transform an operative term of
the settlement--p 70(9)--into a symbolic reminder reveals both the
unenforceability of p 70(9) and the dangers inherent in its attempted
enforcement. The provision is unenforceable because monitoring a religious
symbol's effect on a child's beliefs is an impossible task. The attempt to enforce
this provision necessarily requires the state to engage in this impossible task,
which is precisely the type of involvement in religious affairs that the state
ought to and--even in the foster care context--can avoid. Granting the state an
invasive power to order the removal of what the panel deems "excessive"
religious symbols unconstitutionally entangles the state in matters of religion.
The sectarian agencies could well decline to provide their essential services
when the conditions attached to participation in the program trench on deeply
held religious convictions.

52

It strikes me that the district court and the parties--who have already
successfully overcome many constitutional difficulties in New York's foster
care system--could recraft better than this Court relevant portions of the
stipulation in order to excise unwarranted and impermissible entanglements.
The excessive degree of government entanglement in religious matters included
in the stipulation is not reasonably necessary to ensure the Free Exercise rights
of foster children. Thus, under the third prong of Lemon, the stipulation is
constitutionally infirm.

53

For the reasons stated above, I dissent and vote to remand this case to the

district court for it to eliminate these constitutionally objectionable features

from the otherwise well-designed stipulation.