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The Recorder
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March 24, 1994, Thursday
SECTION: COMMENTARY; Church and State; Pg. 6

HEADLINE: The Delicate Separation: Religion, the State and Special Needs;
A New York state school district's unique arrangement to accommodate handicapped Hasidic children has raised a constitutional battle that reaches the Supreme Court next week

BYLINE: ROBERT F. DRINAN; The Rev. Robert F. Drinan, a member of the U.S. House of Representatives from 1971 to 1981 and past president of the Americans for Democratic Action, is a professor at the Georgetown University Law Center and founder of Georgetown's Journal of Legal Ethics.

BODY:
On Wednesday, March 30, at 10 a.m., the U.S. Supreme Court will hear an unprecedented argument. The issue: Can a state constitutionally finance a school district created expressly for handicapped children of one particular religion?

Five years ago, the New York Legislature created a school district to accommodate children with special needs in Kiryas Joel -- a community of 12,000 Orthodox Jews who reside on 320 acres in a town 50 miles northwest of New York City.

All the children of Kiryas Joel go to Orthodox Jewish schools financed by the religious community. The schools give instruction in English, but the language of the entire Jewish community is Yiddish. The children attend school separated by sex and wear traditional Hasidic clothing. The boys are further distinguished by their long side curls. Television, radio and English-language publications are not generally available in Kiryas Joel.

Until 1985, the handicapped children living in Kiryas Joel received special educational services from the Monroe-Woodbury Central School District personnel in an annex of one of the religious schools. In that year, however, in Aguilar v. Felton, the Supreme Court, in a 5-4 decision, ruled that federal funds could not be used to pay the salaries of public employees who offer remedial programs in parochial schools.

For a time after that decision some of the Hasidic children with special needs received remedial training at the local public schools. The parents, however, ended this arrangement because, as one parent said, the children suffered "pain, fear and trauma . . . in leaving their own community and being with people whose ways were so different from theirs."
 
A NEW ENTITY

In 1989, the New York State Legislature sought to resolve the impasse by creating an entirely new school district. The new entity is coterminous with the Hasidic community, thus assuring that all children were of the same religious and ethnic background. The new school district was legally identical with all of the other school districts in New York state; the community elected the members of the school committee and the state gave all of the financing.

Gov. Mario Cuomo signed the bill with a memo indicating that his counsel had declared the measure constitutional. The school district has been functioning for four years and has some 200 children who have such handicaps as deafness, mental retardation, emotional disorders, learning disabilities and Down syndrome.

The new school district is staffed by teachers from outside the Hasidic community. No religion is taught, nor are religious symbols employed. The language is English, not Yiddish, and the teachers are paid in the same way as their counterparts in New York state.

A legal challenge to the unique arrangement in Kiryas Joel brought victory to those challenging the state-financing of the district of the trial courts, the appellate division, and the New York Court of Appeals, that state's highest court. The trial judge held that the school district violated all three prongs of the Supreme Court's 1971 decision in Lemon v. Kurtzman. The judge held that the school district was set up to aid one religious group, that its primary effect was to advance religion, and that it involved excessive entanglement between religion and government. The judge concluded that the legislation "is an attempt to camouflage, with secular garments, a religious community as a public school district."

The appellate division 4-1 agreed that the arrangement in Kiryas Joel violates at least the second prong of Lemon. The dissent, stressing the needs of the children involved, concluded that the legislation was a good faith accommodation between the mutually reinforcing guarantees of the establishment and free-exercise clause of the First Amendment.

On July 6, 1993, New York's highest court agreed 5-2 with the lower courts. The court here, too, reasoned that a school district coterminous with the Hasidic community violates Lemon by having the primary effect of advancing religion.

The court rejected any analogy to the June 18, 1993, Supreme Court decision in Zobrest v. Catalina Foothills School District. In that case, the Supreme Court, in a divided ruling, held that Arizona was required to pay for a sign-language interpreter for a profoundly deaf student attending a Catholic high school. Zobrest, the New York court held, means only that the government may not bar religious groups from receiving governmental benefits designed for all in a neutral manner, and the arrangement in Kiryas Joel was not a neutral setting.
 
VARIED VIEWPOINTS

The several amici in the Supreme Court see the issues in Kiryas Joel Village School District v. Grumet, No. 93-517, in very different ways. The American Civil Liberties Union, the American Jewish Congress and People for the American Way agree that the New York statute violates the First Amendment. The U.S. Catholic Conference, the Christian Legal Society, a Southern Baptist group, and the Orthodox Jewish community want to have the law declared constitutional, arguing that the curriculum and the atmosphere of the school district in question are entirely secular and that any other resolution of the problem could compromise the legitimate needs of an ethnic group entitled to the free exercise of religion.

Some members of the Supreme Court -- Chief Justice William Rehnquist and Justices Antonin Scalia, Sandra Day O'Connor and Clarence Thomas -- have already signaled their misgivings about Lemon. Justice John Paul Stevens has always endorsed the firm separation of church and state adopted by Justice Wiley Rutledge in Everson v. Board of Education, decided in 1947 when Stevens was a law clerk to Rutledge. Justice Harry Blackmun tends to favor that position; Justice David Souter concurred in the decision that banned invocations as a part of commencement exercises. The position of Justice Anthony Kennedy is less clear, as is that of the court's newest justice, Ruth Bader Ginsburg.

The Supreme Court could reverse Kiryas Joel on grounds confined to the particular facts involved. Following the direction suggested by the New York Court of Appeals, it could find that the manner of receiving governmental benefits in that district is "neutral" enough to satisfy Zobrest. But even a narrow ruling will not end the controversy. It may, in turn, serve to create the legal foundation sought by religious groups responsible for educating some four million children in their quest for governmental financing.

New York authorities and parents of the handicapped children in Kiryas Joel may also be able to derive support from the growing American consensus that every possible effort should be made to offer assistance to physically or mentally disabled children.

This novel case also arrives at the high court at a moment when the nation seems to be in a mood to reassess the legal separation between church and state that the court has sought to enforce over the last several decades. There seem to be a widespread belief that young people would be more likely to grow up to be law-abiding citizens if there were a greater emphasis on religious values.

But those who are satisfied with the results of the New York decisions say that a public consensus that religion should be more prominent in the schools of America is irrelevant to the constitutional issues involved in this litigation. Nor are the handicapped children in that community unable to receive special education in an arrangement that does not violate the First Amendment.

How the government deals with a community whose needs and life-styles are outside the mainstream of American life is not a simple question. The law has recognized that religious dissidents are entitled to receive special treatment. Hasidim, like the Amish, Jehovah's Witnesses and Seventh-day Adventists, should be granted exemptions from legal obligations by reason of the free exercise of religion clause of the First Amendment. But the advocates of a separate school system in the Kiryas Joel case are asking for more: They are insisting that the government set up a school for their children because these youngsters are not comfortable in a school with non-Hasidic students.

This is not mere accommodation; it is using government coercion and funding to enforce the personal desires of one sectarian group, desires that are not an integral part of the religion itself. As such, the lower court rulings are well within the boundaries of the precedents followed by the Supreme Court over the years.

Roger Williams embraced the separation of church and state in 17th century America because he was afraid that the state would tend to dominate and control the churches. Thomas Jefferson favored separation because he feared that the churches would try to dominate government -- as they had tried to do in colonial Virginia. Hopefully, the decision in Kiryas Joel will add to the wisdom that the nation has gained from the founders and the nearly 50 decisions on church and state handed down by the Supreme Court since 1947.

GRAPHIC: Illustration, no caption, PATRICE MOERMAN