WASHINGTON (Jun. 28)
There is little question that the Supreme Court fortified the wall between church and state on Monday when it decided to close the Kiryas Joel Village School District created exclusively to serve disabled Chasidic children in upstate New York.
What is not so clear is just how strong that wall is.
Many, but not all, Jewish groups were happy with the renewed fortification, but even among Jews there were mixed opinions about the long-term implications of the case.
The court’s 6-3 decision prompted expressions of disappointment by Orthodox Jewish groups, while most other Jewish organizations praised the court’s ruling that the New York State Legislature, in creating the Kiryas Joel school district, had favored one religion — or at least one branch of it – over all others.
The issue of separation between church and state has long divided the Orthodox Jewish community from the rest of organized Jewry.
Abba Cohen, Washington director of Agudath Israel, expressed “great disappointment” with the court’s decision.
Betty Ehrenberg, executive director of the Union of Orthodox Jewish Congregations of America’s Institute for Public Affairs, said, “We put forth a good argument and a strong coalition and of course we’re disappointed by the Supreme Court’s decision.”
On the other side, Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, which is an ardent supporter of church-state separation, called the decision an “enormous relief.”
Had this decision gone the other way, Saperstein said, “this would have been a balkanization of American educational and religious life at a time when we need pluralism and tolerance.”
Despite the divisions, Jewish groups across the ideological and religious spectrum, many of which filed friend-of-the-court briefs, wasted little time either celebrating or condemning the decision.
DISTRICT ‘CROSSES THE LINE’
Instead, they were focusing their energies on finding a way to educate the 200 disabled students from Kiryas Joel, an Orange County Satmar Chasidic village about 45 miles northwest of New York City.
In his majority opinion, Justice David Souter wrote that New York state’s attempt to create a school district exclusively for Satmar Chasidic children “crosses the line” of permissible accommodation of religion to impermissible establishment of religion, “violating the core of acceptable separation between church and state.”
Chief Justice William Rehnquist, as well as Justices Antonin Scalia and Clarence Thomas, dissented from the majority opinion.
Justices Harry Blackmun, John Paul Stevens, Sandra Day O’Connor and Ruth Bader Ginsburg joined in the majority, and Justice Anthony Kennedy wrote a concurring opinion.
The ruling in the Board of Education of Kiryas Joel vs. Grumet upheld a 1993 New York Court of Appeals decision that the school district violated the constitutional guarantee of separation between church and state.
At issue was whether the New York State Legislature overstepped the constitutional boundaries of religious accommodation to religious establishment, favoring one religion over another, when it passed a 1989 law creating the Kiryas Joel school district along the boundaries of the exclusively Satmar enclave.
The legislature was responding to the concerns of Chasidic parents who believed they could not send their disabled children to their own religious schools because of inadequate facilities, or to public schools because of religious and cultural differences.
In his dissent, Scalia wrote, “The Grand Rebbe would be astounded to learn that after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an ‘establishment’ of the Empire State.”
Despite the court’s decision, the long-term implications of this closely watched church-state case were not immediately clear.
“This area has been uncertain for so long,” said New York Gov. Mario Cuomo in a telephone interview Tuesday.
“I’ve seen all the twists, turns and vagaries to the court and we still don’t have a clear test,” said Cuomo. “To a large extent we’re still in the dark.”
Marc Stern, general counsel of the American Jewish Congress, hailed the decision, saying, “Once and for all the minimalist notion that prohibits favoritism to a particular religion is not going to muster a majority of the court.
“The extreme views of Justices Rehnquist and Scalia have pretty much been laid to rest and that’s welcome news by the Jewish community,” he said.
‘A VERY EASY CASE’
But Stern also cautioned not to read too much into this decision because, he said, “this was a very easy case.
“The only thing that I find surprising is that three justices dissented,” said Stern.
Saperstein of the Reform movement said he believed “the 6-3 vote says that the new appointees have shifted the balance of the court.”
While this case affirms the wall of separation established by the Warren and Burger courts of the 1960s and 1970s, Saperstein said, “The cases over the last several years indicate that they are more willing when confronted with a specific fact situation to in fact cross the wall.”
As for Supreme Court Justice nominee Stephen Breyer, Stern, who has studied and written on Breyer’s writings, said the next likely justice will probably favor a strong separation between church and state.
Despite widespread speculation to the contrary, the court left intact the so-called “Lemon test” used to evaluate whether actions violate the First Amendment’s guarantee that the government make no laws “respecting the establishment of religion.”
To be deemed constitutional under the Lemon test, named after a 1971 ruling in Lemon vs. Kurtzman, a law must have a secular purpose, its primary effect must neither advance nor inhibit religion and it must not foster excessive government entanglement with religion.
The Kiryas Joel ruling focused instead on the issue that states may not delegate civil authority to a group chosen on the basis of religious criteria.
Referring to the Lemon test, Cuomo said, “One of the things I was hoping for was a nice clear test of Lemon and that did not happen. There is not a great deal of clarity on this issue.”
But he did hail the commitment by the majority of the justices to revisit Aguilar vs. Fenton, a 1985 church-state case that banned publicly paid teachers from visiting parochial schools.
The Fenton decision in effect created the controversy that eventually led to the establishment of the Kiryas Joel school district.
Cohen of Agudath Israel also called the commitment to revisit Aguilar “the silver lining in a dark cloud. It was the decision that really got us into this whole mess.”
Jewish groups, meanwhile, have already begun to mobilize to ensure the Kiryas Joel students receive the services they need.
The school currently serves about 200 students, 160 from the village on a part-time basis, and 40 full-time on a $6 million budget. Of those, about one-third are Chasidic students who come from outside the village.
‘A SETBACK. NOT THE END’
Calling the Supreme Court ruling “a setback, not the end,” the Kiryas Joel school board president, Abraham Weider, vowed to find an alternative solution.
“We have no choice but to continue our search for a suitable way to provide quality education for the most vulnerable of our children,” Weider said at a news conference Monday.
He said the Kiryas Joel board had begun discussions with Cuomo and members of the New York State Legislature to work out a new plan.
“We believe strongly that people of compassion and good will can find a way to provide the education our children need and deserve,” Weider said.
Terrence Olivo, the superintendent of the Monroe-Woodbury Central School District, from which the Kiryas Joel district seceded, said he was “disappointed” by the Supreme Court’s decision, but that his district would also move to make alternative arrangements.
“We recognize our obligation and responsibility to educate all students in Monroe-Woodbury, and we now know that includes the students of Kiryas Joel,” Olivo said in an interview.
Final arrangements should be reached in time for the start of the new school year in September, Olivo said.
Souter himself, in the court decision, spelled out numerous suggestions on how to meet the needs of the children without violating the Constitution. The children could receive bilingual and bicultural education at a public school already run by the Monroe-Woodbury district, or if a separate program is deemed appropriate, the district could open a school at a neutral site near one of the village’s parochial schools, Souter wrote.
As a last resort, he wrote, if the New York State Legislature was dissatisfied with the local solutions, “it could tighten the mandate to school districts on matters of special education or bilingual and bicultural offerings.”
Cuomo said he believes that “we’ve got to get the special education children who are not free to use the ordinary public education system because of their religious beliefs.
“We’re not going to throw our hands up and say ‘your religious commitment is the problem’ or blame the court and say ‘we gave it our best shot.’ We’re not in the blame game.
“We’ll try again and again if we have to in order to find a constitutionally acceptable solution,” the governor said.
(Contributing to this report was JTA staff writer Pamela Druckerman in New York.)