Copyright 1994 The Washington Post  
The Washington Post
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March 31, 1994, Thursday, Final Edition
SECTION: FIRST SECTION; PAGE A4

LENGTH: 1236 words

HEADLINE: High Court Considers Hasidic School Case;
Special District for Disabled Children in Jewish Village Challenged as Church-State Violation

SERIES: Occasional

BYLINE: Joan Biskupic, Washington Post Staff Writer

BODY:
The Supreme Court yesterday considered how a state could educate the disabled children of a reclusive Orthodox Jewish village without unconstitutionally favoring their religion.

The unusual case, argued in a packed courtroom dotted with Hasidic men dressed in black and wearing long sidecurls, focuses on the New York legislature's creation of a special district specifically for disabled children in the small village of Kiryas Joel. Yet, a ruling in the fractious area of church-state law could broadly affect how much governments are involved with religion and how America's public schools are set up.

"Was governmental power transferred" to the religious community, Justice Anthony M. Kennedy wanted to know. Did New York single out a particular religious group for benefits, Justice Sandra Day O'Connor asked.

"This seems to be a dangerous precedent," O'Connor said of the 1989 law written for the Satmar Hasidic village about 40 miles north of New York City.

In the past, Kennedy and O'Connor have been key swing votes on issues involving the First Amendment mandate that government "shall make no law respecting an establishment of religion."

It was plain that both were skeptical of arguments yesterday that the New York legislature properly addressed a "local problem" arising out of cultural, rather than religious, differences.

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

The children in the village who are not disabled have attended private yeshivas for boys and girls since Kiryas Joel's founding in the 1970s.

Justice David H. Souter suggested an alternative solution could have been found, such as allowing the Monroe-Woodbury district to run a school for the Hasidic children at a "neutral site." The Kiryas Joel school is operated by a school board elected from the village.

Justice Ruth Bader Ginsburg, hearing her first big religion case on the Supreme Court, also questioned whether a less drastic alternative was available. But she intimated that it helps the special district's legal position that its boundaries match the boundaries of a legally incorporated village with elected officials.

Chief Justice William H. Rehnquist and Justice Antonin Scalia spoke approvingly of the special district and criticized the lawyer challenging its constitutionality. "What you're saying is that the Satmar, because they all live together, can't exercise the ... right" that other communities have to establish their own school district, Rehnquist asserted.

Justices John Paul Stevens and Harry A. Blackmun both favor a high wall of separation between church and state. Based on their questions yesterday and prior opinions, they are likely to agree with the New York Court of Appeals finding that the legislation produced an unconstitutional "symbolic union" between the New York legislature and the Satmar.

Justice Clarence Thomas, as is his practice, asked no questions. His record suggests he could align with Rehnquist and Scalia.

Yet, as much as church-state conflicts are old terrain for the court, this case defies the usual categories. The court's past disputes generally tested the validity of public aid to parochial schools or of religious activities.

In the former category is last year's 5 to 4 decision allowing a publicly funded sign language interpreter for a Roman Catholic school student, or the 1985 ruling, again 5 to 4, that public school instructors could not teach any classes on the premises of parochial schools. The second category includes the court's 1992 ruling, also 5 to 4, prohibiting prayers at a high school graduation.

At issue yesterday was a unique law addressing the needs of the mentally retarded and other disabled Satmar children.

Nathan Lewin, lawyer for the district, told the justices the legislature had properly accommodated a special local problem. He emphasized that the village school is secularly run.

To questions from Kennedy about a potential transfer of government power to the Satmar, Lewin stressed that the district's boundaries match official village boundaries.

Lewin said the legislature was providing a public service, such as trash collection.

But O'Connor countered that trash laws are "neutral" and broadly cover a community. "I have a little trouble when [the legislature's action] is limited" to a single group.

Lewin likened the Kiryas Joel situation to last year's ruling allowing a public interpreter to serve a parochial student. However, in last year's case from Arizona, the sign language interpreter was financed through a general government benefit program for all handicapped students. In the New York case, the state is helping handicapped students of a particular religion.

Assistant New York Attorney General Julie S. Mereson, who also defended the New York statute yesterday, said government may "tolerate" a religion that already is in place but it may not "encourage" it.

She said village residents and officials at the Monroe-Woodbury school district were at an impasse over how to handle the children, whose parents wanted to keep them away from the influence of English-language publications and television. She said the children had been "traumatized" in being forced to leave their insular community.

To Kennedy's questions about a "transfer of power" to a religious group, Mereson said the community runs the school, not the religious organization.

Lawyer Jay Worona represented two officials of the New York State School Boards Association who challenged the law, Louis Grumet and Albert W. Hawk.

If the Supreme Court reverses the New York court and upholds the law, Worona said, other states may similarly accommodate religious groups: It would "politically fragment the nation ... [and] tell children they can be separated along religious lines."

Scalia told Worona the village could be viewed as culturally and linguistically segregated, rather than religiously segregated. "Their customs spring out of their religion," Scalia said. "But the state was primarily responding to the customs."

Ginsburg asked whether the school board members could be operating objectively as public officials. "You seem to be saying they can't take off their religious hats," Ginsburg said.

Worona said perhaps the board members could act without religious considerations, but that the justices should focus on the board's religious beginnings.

He said the Kiryas Joel situation differs from school districts that happen to be controlled by Roman Catholics or Mormons because the latter were not set up that way by the government.

Some of the justices noted that were it not for the court's 1985 ruling forbidding public school teachers to offer remedial classes at religious schools, yesterday's dispute might never have arisen. Until 1985, the disabled children in the village had been taught by public instructors in an annex to the yeshiva schools.

It is possible that in considering a decision in Board of Education of Kiryas Joel v. Grumet, the justices will rethink their decision in the 1985 case, Aguilar v. Felton. The only justices remaining on the court from that five-vote ruling are Blackmun and Stevens.



GRAPHIC: PHOTO, ABRAHAM WIEDEN, SCHOOL BOARD PRESIDENT IN KIRYAS JOEL, N.Y., AN ORTHODOX JEWISH VILLAGE OF ABOUT 12,000, TALKS TO REPORTERS OUTSIDE SUPREME COURT. AP

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