Copyright 1993 Seattle Post-Intelligencer  
SEATTLE POST-INTELLIGENCER
November 30, 1993, Tuesday , FINAL
SECTION: NEWS                                LENGTH: MEDIUM: Pg. A1

LENGTH: 826 words

HEADLINE: WHERE IS WALL BETWEEN STATE AND CHURCH? ;
HIGH COURT WILL HEAR CONTROVERSIAL CASE

BYLINE: Dan Freedman Hearst Newspapers

DATELINE: WASHINGTON

BODY:  The Supreme Court yesterday agreed to re-examine the wall of separation between church and state in a case challenging New York's creation of a special school district to educate handicapped orthodox Hasidic Jewish students.

In 1989, New York's legislature approved a school district to serve between 100 and 200 disabled children in the Hasidic village of Kiryas Joel in Orange County, 60 miles northwest of New York City.

The Kiryas Joel public school, its backers say, was set up in 1990 to be completely secular with no special religious instruction or symbols and no observation of the Hasidic tradition of separating the sexes.

"Government accommodation to a religious community is not prohibited by the Constitution," said Nathan Lewin, a Washington lawyer representing the Kiryas Joel school board. "So long as you're not using tax money to inculcate religion, there's no reason why (the school district) should be prohibited."

However, opponents say the state has shaken the Constitution's guarantee of church-state separation by funding the Hasidic sect's "religious need to remain culturally isolated," according to a court brief.

"In this case you have a public school district set up to solve a religious problem," said Louis Grumet, executive director of the New York State School Boards Association, who in 1990 filed a lawsuit as an individual against the state that resulted in the case now before the Supreme Court. "This isn't a little bit of accommodation here; they're talking about taking down the wall of separation between church and state."

The approximately 5,000 nonhandicapped students of Kiryas Joel attend Jewish religious private schools. However, federal law mandates state funding of some or all of the educational needs of handicapped students, whether they attend private or parochial schools.

In accepting the Kiryas Joel case, the court is revisiting a vexing issue. The court's conservative wing, led by Justice Antonin Scalia, has been trying to lower the wall of separation or, in other words, to make it easier for governments at the local, state or federal level to sanction religion in schools and other public institutions.

But in the past two years the court's moderates and liberals have resisted Scalia's efforts, upholding a precedent-setting 1971 case, Lemon vs. Kurzman, that lays out a rigid three-pronged test that governments must meet in order to aid religious organizations. In 1992, the court used the "Lemon test," as it is commonly known, to strike down a nonsectarian school graduation prayer.

Venting his frustration over failure to overrule the "Lemon test," Scalia compared it to a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried."

The test requires government to prove that its policy has a secular purpose, is not intended to advance or inhibit religion, and does not promote excessive "entanglement" between government and religion. Policies that don't meet these standards are unconstitutional.

That test once again figures in the case accepted yesterday.

The 1989 law that is an issue in this case was an attempt to broker a settlement between the village and officials of the nearby Monroe-Woodbury school district then serving Kiryas Joel's disabled school-age population. Hasidic parents had objected to female bus drivers taking handicapped children to classes and to integrating them into public schools.

After the legislature passed the 1989 law establishing the Kiryas Joel school district, Grumet, the School Boards executive director, challenged it in a lawsuit.

The New York State Supreme Court in 1992 ruled that establishing the Kiryas Joel school district violated all three parts of the U.S. Supreme Court's test.

New York's appellate court agreed, saying the district was created "so that the children would remain subject to the language, lifestyle and environment" of the Hasidic Satmar sect and "avoid mixing with children whose language, lifestyle and environment are not the product of (their) religion."

Earlier this year, the state's highest court, the New York State Court of Appeals, ruled against the state, saying the 1989 law violated the second prong of the "Lemon test," which prohibits laws that promote or inhibit religion.

Backers of the school district appealed to the Supreme Court. "The accommodation by government meets the social, cultural, and educational needs of the students, not their religious needs," said Lawrence Reich, a lawyer representing the Monroe-Woodbury school district, which entered the case on the side of the Hasidic Jews. Kiryas Joel is "a secular island in an otherwise religious community," he said.

Grumet  predicted that a Supreme Court ruling in favor of Kiryas Joel would inspire other religious communities to push for their own separate public school districts. "It's a tremendous tinderbox."

mc/md

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