One week after the Supreme Court struck down as unconstitutional the Kiryas Joel Village School Distric created to serve disabled Chasidic children in upstate New York, the battle over that district’s future has been re-engaged.
In a 6-3 decision, the Supreme Court on June 27 ruled the district unconstitutional, with the majority opinion saying the district, set up by the New York State Legislature in 1989, “crosses the line” of acceptable separation between church and state.
On Saturday, the state legislature responded. It passed a bill, expected to be signed by Gov. Mario Cuomo, enabling any village to form its own school district if certain conditions are met.
The bill’s sponsors say the measure reflects language in Justice Sandra Day O’Connor’s concurring opinion, which objected to the original Kiryas Joel district because it was created by the legislature to benefit the Chasidim directly.
A more general law would remove this aspect of entanglement, say advocates for the special district. According to a memorandum to legislative leaders and the governor written by Nathan Lewin, who represented Kiryas Joel before the Supreme Court, such a provision would pass muster with at least five of the justices. Included in this majority would be the three dissenters in last week’s decision, who felt there was no entanglement in the way the legislature originally created the Kiryas Joel district.
The Supreme Court ruling in the Board of Education of Kiryas Joel vs. Grumet upheld a 1993 state appeals court decision that the legislature overstepped the constitutional boundaries of accommodation to religious establishment when it passed the 1989 law creating the special district.
The legislature had been 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.
BILL COULD ENCOURAGE ‘BALKANIZATION’
Opponents of the original bill have vowed a challenge to the new version. Louis Grumet, executive director of the New York State School Boards Association, who brought the original challenge against the school distric, said the bill encourages “Balkanization” and promised to oppose it in court. And Jewish groups are again likely to join the challenge.
“We are not convinced that this will be constitutionally sound either, and we are committed to protecting the separation of church and state,” said Steven Freeman, director of legal affairs for the Anti-Defamation League.
The ADL “will consider involvement if litigation results,” Freeman said.
The American Jewish Congress believes there will be litigation, and is planning to sign on.
“The case is going to be litigated on the ground that essentially only one school district will qualify. In reality, it’s just a way of doing what has already been done,” said Marc Stern, general counsel of the AJCongress.
While the children of Kiryas Joel have needs which should be met by the surrounding school district, Stern said the route chosen by the legislature represents “the worst of all possible worlds.
“You can imagine some group moving up to some village, and then setting up their own school districts to train extremists or bigots or what have you. You’re inviting this sort of micro-specialization or Balkanization,” he said.
“Given the starins and stresses on the public school system, with people wanting separate male and separate female districts, separate black and separate Hispanic and separate gay school districts, it is very poor public policy to rush into this,” Stern said.
State Assemblyman Jules Polonetsky, a Brooklyn Democrat who was one of the bill’s cosponsors, defended the bill.
“We have done something that is good educational policy,” he said. “The direct intention was to solve a problem for the children of Kiryas Joel, but hopefully we’ve done it in a way to be of benefit for other children in the state.”
Polonetsky called the Balkanization issue “a sham. We’re giving more flexibility to school districts,” he said, citing other bills passed by the legislature aimed at school-based management.
Critics of the bill have called it an election-year maneuver to appeal to Chasidic voting blocs.
GOING ALONG WITH THE LARGER COMMUNITY
“It’s very hard to understand why it is proceeding in this fashion, other than a desire to take advantage of the political clout of the Satmar community,” said Stern, referring to the Chasidic group that requested the special school.
“You can only speculate that the politicians believe it is far easier to get an immediate reward by satisfying one element of the Jewish community. Then it is going along with the wishes of the larger, more numerous Jewish community,” Stern added.
Polonetsky denounced as “offensive” charges of political motivation.
Polonetsky denounced as “offensive” charges of political motivation.
But it is clear that Cuomo, who is up for re-election this year, is facing what may be his toughest contest yet. Last year’s victory in the New York City mayoral campaign by Republican Rudolph Giuliani, who was strongly supported by the Orthodox community, highlighted the community’s political clout.
At the same time, the approach of the AJCongress and other mainstream Jewish organizations, which have long supported church-state separation and a strong public school system, may be losing out in an increasingly Orthodox New York Jewish electorate.
A 1991 New York Jewish Population Study found that of the 329,000 Jewish children in New York City, Long Island and Westchester between 6 and 18, those attending Jewish day schools or yeshivas outnumbered those in afternoon or Sunday school programs by 111,000 to 72,000. The remainder were receiving no Jewish education.
Whatever the polities, it remains to be seen whether Kiryas Joel will have another day in the Supreme Court.
While advocates of the new bill say it will easily prevail there, Stern predicts provisions of the state constitution will derail the new districting law at the state level.
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