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Sofya Uvaydov, Timothy Capowski and Jennifer Graw                                                     Sofya Uvaydov, Timothy Capowski and Jennifer Graw

For the last 15 years, the courts in this Circuit have consistently split on a focused question: Are private foster care agencies state actors for purpose of 42 U.S.C. §1983 liability? The district courts have the unenviable task of reconciling two Second Circuit decisions from the 1970s, finding state actor status, with 40 years of subsequent Supreme Court precedent establishing a framework of analysis that dictates the opposite answer.

One camp of district judges believes that until the Second Circuit explicitly holds otherwise, they must adhere to the rulings of the Second Circuit from the 1970s. The other camp believes that the Second Circuit’s decisions have been overruled and applies the Supreme Court’s tests. This results in opposite and conflicting conclusions. Strikingly, however, the overwhelming majority of district courts in both camps share the same reservations that these Second Circuit decisions on the matter are no longer good law.

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