Copyright 1993 The Hearst Corporation  
The San Francisco Examiner
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November 29, 1993, Monday; Fourth Edition
SECTION: NEWS; Pg. A-1

LENGTH: 1200 words

HEADLINE: N.Y. school case to test church-state separation

SOURCE: EXAMINER NEWS SERVICES

DATELINE: WASHINGTON

BODY:
The Supreme Court agreed Monday to re-examine its landmark 1971 ruling on how far government may go to accommodate religious practices without violating the constitutional doctrine of church-state separation.

The court voted to rule on a case involving a New York school district created for children of a Hasidic Jewish community to reconsider its rule for enforcing the constitutional requirement.

The justices said they will study a ruling by New York's highest court that struck down the arrangement, saying it violated the First Amendment prohibition against "an establishment of religion."

In advance of the formal appeal, the Supreme Court agreed on July 25 to let the Kiryas Joel Village School District in Orange County, N.Y., keep operating while it petitioned to overturn the New York Court of Appeals' July 8 ruling.

The New York legislature carved out the district in 1989 to resolve a standoff between the Monroe-Woodbury Central public schools and the village over how to provide services to disabled village students. Almost all village residents belong to the Satmar Hasidic sect.

Officers of the New York State School Boards Association challenged the Kiryas Joel district's creation, and the state Court of Appeals ruled for the association officials.

Religious "demands'


Because special education services were already available to disabled students through the Monroe-Woodbury schools, the "primary effect" of New York's decision to create a Kiryas Joel district "is not to provide those services but to yield to the demands of a religious community whose separatist tenets create a tension between the needs of its handicapped children and the need to adhere to certain religious tenets," Judge George Bundy Smith wrote for the state court.

Judge Joseph Bellacosa, writing in dissent in the 3-2 ruling, countered that the decision "drapes a drastic new disability over the shoulders of young pupils solely on account of the religious beliefs of their community."

Most children in the Kiryas Joel Village attend private schools where students are segregated by sex. Boys are instructed in the Torah and girls on what they will need to function as adult Satmarer women.

However, the 200 disabled children who receive special education from the Kiryas Joel Village School District attend coeducational classes that teach only secular subjects, lawyers for the district said in urging the Supreme Court to take the case.

Also urging the justices to uphold the law as a permissible accommodation of religion was New York State. It said its legislature provided "a neutral solution for two immovable parties", the Monroe-Woodbury public schools and the residents of Kiryas Joel, who contended their disabled children suffered "panic, fear and trauma" when they attended special education classes in the regular public schools.

As a condition of agreeing to set up the Kiryas Joel district in 1989, the state required that the district teach only secular subjects and not segregate students by sex.

Landmark test


Kiryas Joel school officials also used their appeal to ask the Supreme Court to overturn its 1971 landmark test for determining whether laws or government practices violate church-state separation under the First Amendment.

Under that test, a statute violates church-state separation if it has a religious purpose, primarily advances or promotes religion or results in excessive entanglement of government with religion.

Only last term the court declined to overturn the 1971 ruling.

But observers speculated the court will issue a ruling that reaches beyond the Kiryas Joel. They noted that the justices could have granted review and limited the issues in the case to avoid reconsidering the 1971 ruling. But Monday's order reflected no such limitation.

In other action, the court:

Turned down the Federal Election Commission's attempt to deny taxpayer campaign dollars to the 1992 presidential campaign of jailed political extremist Lyndon LaRouche.

The FEC rejected his qualifying papers for federal matching funds because of his criminal conviction for fraud and previous violations of fund -raising rules, but a federal appeals court said only current violations, not past behavior, could serve as justification for turning down LaRouche.

LaRouche filed his '92 qualifying papers from his cell at the federal prison in Rochester, Minn., where he is serving 15 years.

Agreed to decide how far government may go in requiring private land to be used for environmental purposes.

The court said it would hear arguments by a Tigard, Ore., plumbing store owner who said local land-use officials unfairly required her to set aside part of her land for a bike path as a condition of building a bigger store.

In the case accepted for review Monday, the store owner's lawyers said she "is not responsible to provide parkland, storm drainage and pedestrian and bicycle pathways for the people of the city and, therefore, she cannot be singled out to bear the burden of completing the city's longstanding plans for greenways, storm drains and pathways."

Attorneys for the city said the high court has previously established that a land-use regulation does not cause a "taking" of private property "if it substantially advances a legitimate state interest and does not deny an owner economically viable use of their land."


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