Copyright 1994 South Bend Tribune Corporation  
South Bend Tribune (Indiana)
March 31, 1994, Thursday, MICHIGAN, INDIANA, TRIBUNE
SECTION: NATION/WORLD, Pg. A8

LENGTH: 800 words

HEADLINE: HASIDIC SCHOOL DISTRICT LIFTS CHURCH-STATE DEBATE

BYLINE: LINDA GREENHOUSE N.Y. Times News Service

BODY:  WASHINGTON - The Supreme Court's fault lines on questions of church and state were on full display Wednesday as the justices heard arguments on the constitutionality of a New York public school district that was created to serve the secular needs of a deeply religious community.

Routinely during arguments, the justices toss hypothetical questions at the lawyers before them as a way of exploring the dimensions of a case.

But while the justices offered several imaginary scenarios Wednesday, none were as complex or exotic as the history and existence of the Kiryas Joel Village School District in Orange County, N.Y., whose fate will be determined by the court's ruling.

The New York Legislature set up the district, which consists of one building, in 1989 to enable a village inhabited entirely by Hasidic Jews of the Satmar sect to give its handicapped children a publicly financed education in a cloistered setting that reflects the village as a whole.

All the children in the village who are not disabled attend Jewish parochial schools. The children with disabilities were entitled to special education services in the school district of the surrounding town, but the Hasidic parents did not want to expose their children to the stress and possible ridicule of the outside world.

"Is it fair to say that government power was transferred here to a geographic entity based on the religious beliefs of its residents?" Justice Anthony M. Kennedy asked Nathan Lewin, the lawyer for the Hasidic school district.

Lewin said that characterization was not fair because the Legislature did not draw the school district's lines on an explicitly religious basis. But even if it had, he added, that would have been a constitutionally permissible accommodation to the needs of a religious community.

"It turns the Constitution on its head," Lewin said, "to say that the free exercise of religion becomes the one impermissible vice" that amounts to an unconstitutional establishment of religion.

The New York Court of Appeals, the state's highest court, invalidated the Kiryas Joel school district last July. In a 4-2 decision, that court ruled that creation of the district amounted to a symbolic union of church and state, in violation of the First Amendment, which prohibits the establishment of religion.

That decision, Lewin said Wednesday, was the equivalent of ruling that "because these people are religious, they can't be trusted to run a public school system." He said the school district itself was "wholly secular," serving only the special educational needs of the disabled children.

The Supreme Court granted a stay of the state court's ruling that will dissolve if the state court's ruling is upheld when the justices rule on the matter by early summer.

While the court could use this case, Board of Education vs. Grumet, No. 93-517, as a vehicle to re-examine its approach to the establishment clause, the justices appeared absorbed in the details of the case and did not seem eager to make new law.

Lewin's argument did not appear to allay the concerns of Kennedy or several other justices, including Sandra Day O'Connor and David Souter.

At one point Lewin held up a thick book containing the legal code of the village of Kiryas Joel to make the point that the village, established by the Hasidim in 1977, functions as a normal government with secular concerns.

He said that while the village provides for trash collection, it would not violate the Constitution to permit residents who did not want to handle their trash on the Sabbath to collect it themselves on a different day.

Justice O'Connor said she would agree if there were a general, neutral law permitting people to collect their own trash.

But she said she had trouble with the school district's case because the district was set up not under generally applicable legislation, but under a law that dealt only with the needs of the Hasidim. At another point, she referred to the law as a "dangerous precedent."

To a greater degree than usual, most justices appeared to be grappling with the case and uncertain of the final outcome.

Justice Antonin Scalia, however, dismissed the constitutional concerns as misplaced. Religion was not really a part of the case, he said, because by setting up the school district, the state was accommodating not the residents' religious needs but their cultural differences, like their use of Yiddish, their distinctive dress and their "isolation from modernity."

"Their customs spring out of their religion, but the state was accommodating their customs," Scalia told Jay Worona, the lawyer arguing on behalf of the New York State School Boards Association that the district is unconstitutional. "I don't see how the state is accommodating any religious beliefs."

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