Ms. Betsy Kramer’s letter to the editor, Protect Society’s Most Vulnerable Members, NYLJ (March 15, 2021) seeks to adhere to the “Supreme Court’s long-standing precedent” of holding foster care agencies as state actors liable under 42 U.S.C. §1983. However, the entire premise of Ms. Kramer’s letter is wrong. The Supreme Court’s long-standing precedent has never classified private foster care agencies as state actors. In fact, the most analogous Supreme Court holding in Rendell-Baker v. Kohn, 457 U.S. 830 (1982), reached the opposite result.

Her letter also seems to have missed the point of these authors’ prior article, Riddle of State Actor Status for Private Foster Care Agencies, NYLJ (March 5, 2021), which reported on a 15-year district court split and advocated for parties to fully and adequately litigate this split in the Second Circuit instead of evading the issue. Instead of relying on a decades-old decision in Perez v. Sugarman, 499 F.2d 761 (2d Cir. 1974), when courts are split on whether this is still good law, plaintiff and amici (including Ms. Kramer’s organization) are also free to argue whether the requisite state action exists under any one of the modern tests.

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