Copyright 1999 The New York Times Company  
The New York Times
 View Related Topics 
May 12, 1999, Wednesday, Late Edition - Final
SECTION: Section B; Page 2; Column 3; Metropolitan Desk 

LENGTH: 758 words

HEADLINE: Court Decision Upsets School District Measure for Kiryas Joel

BYLINE:  By JOSEPH BERGER 

BODY:
New York State's highest court yesterday declared unconstitutional the third and latest legislative effort to create a special public school district for the disabled children of the Hasidic village of Kiryas Joel, saying that it still amounted to "preferring one religion over others."

But a vigorous dissent by three judges of the State Court of Appeals suggested that the decade-old case, which has produced 10 court rulings, was not over.

"The intractable drama of this dispute has a David and Goliath staging to it -- yet it is difficult to decide who will be left standing in the end as the true victor or hero," Judge Joseph W. Bellacosa said.

Abraham Weider, the Mayor of Kiryas Joel, a village of 15,000 Satmar Hasidic Jews in Orange County, said it was considering appealing for a second time to the United States Supreme Court or returning to the State Legislature for a fourth time.

In 1989, Kiryas Joel persuaded the Legislature to carve out a special public school district from surrounding Monroe-Woodbury, contending that the village's 250 handicapped children felt uncomfortable attending secular classes.

The Legislature's first law was declared unconstitutional by several courts, including the Supreme Court, which found that the law written explicitly for Kiryas Joel by name amounted to a favor for a single religious group. The Legislature's second effort, in 1994, did not name Kiryas Joel but was thrown out by succeeding courts because the law's criteria of wealth and population applied only to Kiryas Joel.

In 1997, the Legislature tried for a third time and slightly broadened the criteria. But the lower courts found that this version applied to only two of the state 1,545 municipalities -- Kiryas Joel and the town of Stony Point in Rockland County. Yesterday, a four-judge majority of the Court of Appeals agreed, finding that the law, known as Chapter 390, did not meet the Supreme Court's test of neutrality toward religion.

"The conclusion is inescapable that Chapter 390 has the primary effect of advancing religion and constitutes an impermissible accommodation," Judge George Bundy Smith wrote for the majority. Proposing an alternative, he pointed out that public school teachers, after a 1997 Supreme Court decision, were now permitted to enter parochial schools or yeshivas to deliver remedial or special education classes and could now enter Kiryas Joel's religious schools.

In his dissent, Judge Bellacosa argued that in assessing constitutionality, the court must give the Legislature the benefit of the doubt. The 1997 law, he said, was written with two secular purposes -- to create new school districts and provide secular education for children of Kiryas Joel, which he emphasized is a municipal village, not a religious entity. Nothing is wrong, he said, with passing a law that benefits a single municipality so long as the language is broad enough to cover other communities.

Kiryas Joel's residents, the judge said, "simply took their place in the long line of supplicants walking and working the corridors of power in the Statehouse." It is not, he said, "un-American or unconstitutional to refuse to be absorbed into the melting pot."

Mayor Weider, a businessman who has led the battle to sustain the public school, was heartened by the dissent. "It's a 4-3 decision, which is better than it's ever been," he said.

But Joseph Waldman, a Kiryas Joel dissident who opposes the school, said the village was also trying to retain control of the school taxes its residents pay and millions of dollars in Federal and state programs for remedial, bilingual and transportation programs.

If the Legislature and the Supreme Court refuse to intervene, the State Education Department could close the district in the next few weeks and force the surrounding Monroe-Woodbury district to provide special education classes for the handicapped at the village's religious schools, said Jay Worona, general counsel for the New York State School Boards Association, which brought the litigation against Kiryas Joel.

Monroe-Woodbury, however, has resisted absorbing Kiryas Joel because it would add a large bloc of voters who do not send children to public schools and might stymie spending increases.

Gov. George E. Pataki, who supported the latest Kiryas Joel legislation, declined comment. Pat Lynch, speaking for Assembly Speaker Sheldon Silver, said Mr. Silver was "committed to finding a mechanism" to meet "the educational needs of this group of disabled youngsters."
 

http://www.nytimes.com

GRAPHIC: Photo: A Kiryas Joel resident walking past a synagogue in the Hasidic village. (Joyce Dopkeen/The New York Times)

LOAD-DATE: May 12, 1999