Copyright 1994 The Washington Post  
The Washington Post
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June 28, 1994, Tuesday, Final Edition
SECTION: FIRST SECTION; PAGE A1

LENGTH: 979 words

HEADLINE: Special School District Ruled Unconstitutional

SERIES: Occasional

BYLINE: Joan Biskupic, Washington Post Staff Writer

BODY:
The Supreme Court, in a strong affirmation of the separation of church and state, yesterday ruled unconstitutional a New York public school district created solely for the disabled children of a small village of Hasidic Jews.

By a 6 to 3 vote, the justices struck down the 1989 New York law that carved out a school district to match the lines of the religious population of Kiryas Joel, a Satmar Hasidic enclave about 40 miles north of New York City. The new district was set up after the Hasidic parents complained that their children were alienated and taunted when they attended special classes at the public school district to which they were originally assigned.

But the Supreme Court said the state legislature crossed over the line separating permissible accommodation of religious interests to impermissible "establishment" of religion.

Justice David H. Souter, writing for the court, said the New York legislature wrongly created a "fusion of governmental and religious functions."

Souter said government must show "neutrality" among religions. His opinion was a victory for advocates of a high wall separating church and state interests, which showed once again divisions among the justices on religion.

Conservative justices who have sought more government interaction with religion said it was an "unprecedented" defeat.

Justice Antonin Scalia wrote, "This is unprecedented -- except that it continues, and takes to new extremes, a recent tendency in the opinions of this court to turn the [Constitution] into a repealer of our nation's tradition of religious tolerance."

Scalia accused the majority of finding "that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim." Souter rejected Scalia's verbal fisticuffs, calling the dissent "the work of a gladiator, but he thrusts at lions of his own imagining."

The American Center for Law and Justice, founded by television evangelist Pat Robertson, called the ruling "a warning shot aimed at accommodation of religion."

Jay Sekulow, chief counsel of the group, said, "The message is clear. If a religious organization is the primary beneficiary of state action, it runs the risk of treading on constitutionally thin ice. This decision is disturbing and dangerous in the fight to guarantee freedom of religion for all people of faith."

But other religious groups, especially those with liberal leanings, cheered the decision along with civil liberties organizations.

"While we sympathize with the plight of the handicapped children of Kiryas Joel," Ruth Lansner, of the Anti-Defamation League of B'nai B'rith, said "the creation of a separate school district to serve their needs was clearly unconstitutional. We are gratified that the court has rejected that option and resoundingly reaffirmed the fundamental principle that in this country, the government must remain neutral on religious matters."

Despite Scalia's protestations, the court has not been consistently unaccepting of government involvement with religion. Last term, for example, the court allowed a publicly funded sign-language interpreter to attend classes in a Roman Catholic school to aid a deaf student.

Overall yesterday, the court effectively left in place a long-standing test, from a 1971 ruling, for evaluating whether government actions violate the First Amendment mandate that government "shall make no law respecting an establishment of religion."

The court has said that to pass constitutional muster, legislation 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 majority did not embrace or reject that standard but rather said the legislature violated the fundamental principle that "government should not prefer one religion to another, or religion to irreligion."

As much as church-state conflicts have become familiar terrain for the court, yesterday's unique case defied the usual categories. Rather than testing the validity of public aid to parochial schools or of government-endorsed religious activities, it involved a public school district whose boundaries were deliberately set to coincide with a religious community.

Before the Kiryas Joel schoolhouse was built in the village of 12,000, the disabled children attended classes in the regional Monroe-Woodbury Central District. The Hasidic parents complained that the children were ostracized because they speak Yiddish, dress differently and shun modern ways.

The non-disabled children in the village have attended private religious schools for boys and girls since Kiryas Joel's founding in the 1970s. The community has said it does not have the resources to care for the special needs children.

The district was challenged by two officials of the New York State School Boards Association as a breach of the constitutional separation of church and state. A state court agreed, saying that the "primary effect" of the law was to advance religion. The state court said the statute created a "symbolic union of church and state" that would be perceived by the Satmar and outsiders as an endorsement of their religious choices.

Rather than use such language that the lower court adopted from the 1971 Supreme Court ruling in Lemon v. Kurtzman, Souter relied on a 1982 case that said states may not delegate civil authority to a group chosen according to religious criteria.

Joining Souter in his opinion were Justices Harry A. Blackmun, John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg, who was deciding a church-state case on the high court for the first time. Justice Anthony M. Kennedy concurred in the judgment.

Signing onto Scalia's dissent in Board of Education of Kiryas Joel v. Grumet were Chief Justice William H. Rehnquist and Justice Clarence Thomas.

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