FULTON et al v. CITY OF PHILADELPHIA et al

Filing 1

COMPLAINT against CITY OF PHILADELPHIA, DEPARTMENT OF HUMAN SERVICES FOR THE CITY OF PHILADELPHIA, PHILADELPHIA COMMISSION ON HUMAN RELATIONS ( Filing fee $ 400 receipt number 178509.), filed by TONI LYNN SIMMS-BUSCH, SHARONELL FULTON, CECELIA PAUL, CATHOLIC SOCIAL SERVICES. (Attachments: # 1 Case Management Track Form, # 2 Civil Cover Sheet, # 3 Designation Form, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(jwl, )

Exhibit G

CITY OF PHILADELPHIA

LAW DEPARTMENT
One Parkway
1515 Arch Street
Philadelphia , PA 19102-1595

May 7, 2018
Mark Rienzi
President
The Becket Fund for Religious Liberty
1200 New Hampshire Ave. NW, Suite 700
Washington, DC 20036
Dear Mr. Rienzi:
The City of Philadelphia (the "City") is in receipt of your letter dated April 18, 2018 to the
Philadelphia Commission on Human Relations (the "Commission"). Mr. Earle or Ms. Landau
will respond directly to you regarding the questions you raise concerning the Commission' s
jurisdiction. We are writing to you separately to respond to the concerns you raise regarding the
City' s decision to suspend new referrals from DHS to Catholic Social Services' ("CSS") family
foster care program.
While we are genuinely appreciative of the invaluable services that CSS provides on the City's
behalf to the City' s most vulnerable children and to the resource families that care for those
children, those services must be provided in a manner consistent with certain core City
principles, including our non-discrimination rules. As CSS works on the City's behalf, we
cannot allow discrimination against qualified couples who are ready to take on this important
role, simply because of whom they choose to marry. We would not allow such discrimination
against, for example, Catholic couples or "mixed-race" couples, and we cannot allow it with
respect to same-sex couples, either.
You take issue in your letter with the City's ability to apply these non-discrimination rules in the
context of CSS's current contract with the City. We disagree.
Nothing in CSS's existing contract obligates the City to continue to send any referrals to CSS . A
review of CSS ' s contract For General, Kinship, and Teen Parent/Baby Resource Home Care
Providers shows numerous duties on the part of CSS, but for DHS, its duty primarily is to
provide CSS with support and compensation for the services that CSS performs, with no
minimum guarantee or even a duty to provide any referrals. Without any duty to make referrals,
DHS simply cannot be in breach of its contract for failure to continue making referrals.

Moreover, the City has the unilateral right under the contract to terminate or suspend the
contract, regardless of any breach or lack thereof by CSS, "for any reason, including, without
limitation, the convenience of the City." Professional Services Contract General Provisions
("General Provisions") ,r 14.2. You correctly note in your letter that the City has not sent to CSS
a notice of default or a notice to suspend or terminate. That is intentional, as we do not wish to
make this an adversarial proceeding, and we remain hopeful that CSS will comply with its
contractual obligations and will implement them in a non-discriminatory manner. Regardless,
however, the City reserves the right to cancel or suspend this contract, at any time, for the City's
convemence.
Of course, the City does not need to rely on its mere convenience. Section 3.21 of the General
Provisions states:
Provider shall not reject a child or family for Services based upon the location or
condition of the family's residence, their environmental or social condition, or for
any other reason if the profiles of such child or family are consistent with
Provider's Scope of Services or DHS 's applicable standards as listed in the
Provider Agreement, unless an exception is granted by the Commissioner or the
Commissioner's designee, in his/her sole discretion.
("Services" are defined at General Provisions ,r 1. 72 as "the work to be performed under this
contract," which plainly includes the intake and registration of new, prospective foster parents.
See, e.g., Scope of Service p.4 ("Resource caregivers are screened, trained, and certified by the
Provider."); id. at 6 ("Provider is responsible for offering training and related support to
Resource Parents")). In your letter, you confirm that CSS has no intention of complying with
this contractual obligation to provide Services to all qualified families, as you have clearly reaffirmed that CSS intends to reject families for Services based solely on the fact that they are
same-sex couples. That is not a permissible reason for rejection under either the Scope of
Services set forth in the contract or under DHS's applicable standards, and the Commissioner has
no intention of granting an exception.
Indeed, as you know, the refusal to provide Services to same-sex couples constitutes a violation
of a fundamental City policy to provide services to all qualified families. We cannot allow a
provider, acting under a City contract, to inform a qualified family who wants to give of its time,
resources, and home, in order to protect vulnerable children, that they must go elsewhere to make
this contribution, solely because our contractual provider disapproves of their familial
relationship. The City maintains an important policy that all resource families be treated equally,
so long as they meet the agreed-upon eligibility requirements. We recognize that CSS's values
and the City's values may diverge here, but CSS is contracting with the City, not free-lancing,
and the ultimate responsibility for managing this foster care program belongs to the City. We
have to insist that all services provided as part of this program are provided in a manner that is
consistent with our conception of equality.

Moreover, and independent of the foregoing, CSS's refusal to provide services to same-sex
couples is a violation of law. CSS falls squarely within the definition of a "public
accommodation" under the City's Fair Practices Ordinance, Phila. Code§ 9-1102(1)(w), as CSS
is, inter alia, a "provider ... whose ... services ... are ... made available to the public." You
focus on CSS 's admirable provision of services to the children, but the contract indisputably also
requires CSS to provides services to the foster families, including certification, support, reevaluation, and training to any family that meets state regulations and DHS standards and wishes
to provide badly needed foster care.
Please be assured that we have not targeted your client on the basis of its religious beliefs. As
we explained, our motivation arises from our concern that all families in this City be treated
equally with respect to all opportunities and services that are available to them. We respect your
sincere religious beliefs, but your freedom to express them is not at issue here where you have
chosen voluntarily to partner with us in providing government-funded, secular social services.
The Commonwealth has set eligibility standards for prospective foster parents. It is
inappropriate (and arguably unconstitutional) for us to allow a provider to add its own
requirements for foster parents that are rooted in religious doctrine, and which clash with the
constitutional requirement that we treat all marriages/families equally. Nor can we allow you to
refuse service to an otherwise eligible family by referring them to another agency.
Please also note that CSS's current contract expires on June 30, 2018, and the City is under no
legal obligation to enter into a new contract for any period thereafter. We are hopeful that we
can work out any differences before then, but please be advised that -- except where the best
interests of a child demands otherwise -- the City does not plan to agree to any further referrals to
CSS, and the City intends to assist with the transition of foster families to other agencies, absent
assurances that CSS is prepared to adhere to its contractual obligations and, in implementing its
City contract, to comply with all applicable laws, including those relating to non-discrimination.
We believe our current contract with CSS is quite clear that this is our right, but please be
advised that any further contracts with CSS will be explicit in this regard.
Family equality is both a legal requirement, and an important City policy and value that must be
embodied in our contractual relationships. IfCSS cannot come into compliance, we are prepared
to enter into an interim, contractual relationship with CSS in order for CSS to continue to
supervise the foster children in its care properly with the least amount of disruption for them,
while the transition to other agencies is completed. On a related note, contrary to the discussion
in your letter regarding DHS' s practice concerning siblings, because the best interests of the
children in our care are paramount, we did recently grant an exception to the cessation of CSS
referrals in that instance to ensure that siblings were placed together, and we expect that the best
interests of the children will remain paramount throughout any transition.
In closing, we do not wish to see our valuable relationship with CSS regarding foster care
services come to an end. We are hopeful that CSS will be prepared to commit to comply with
the letter and spirit of CSS's contractual obligations and the Fair Practices Ordinance by

committing to provide foster care services on a non-discriminatory basis to all families that meet
the City's standards. Please let me know as soon as possible whether CSS is prepared to
comply with these standards. Alternatively, please let me know with whom I should be in
contact for purposes of promptly negotiating a transition plan.
Thank you for your understanding and your client's work with children and families.
Sincerely,
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Valerie Robinson
Chair, Corporate and Tax Group

cc:

Rue Landau, Executive Director Philadelphia Commission on Human Relations
Cynthia Figueroa, Commissioner, Department of Human Services
Marcel S. Pratt, City Solicitor