Copyright 1994 Boston Herald Inc.  
The Boston Herald
June 29, 1994 Wednesday ALL EDITIONS
SECTION: EDITORIAL; Pg. 032

LENGTH: 414 words

HEADLINE: EDITORIAL Kids, the court and religion

BODY:
Somehow, despite the Supreme Court's decision this week in the Kiryas Joel case, we doubt that the Founding Fathers would have trembled at the notion of a state handout to a group of disabled youngsters.

In 1989, New York state allowed the 12,000 Hasidic Jews of Kiryas Joel to set up a school district for its special needs children.

Since then, the community has received about $ 6 million in state funds. None of that money has gone toward religious education. The school for the handicapped teaches only secular subjects.

According to the majority opinion, the Kiryas Joel district fails to meet the court's neutrality test, because it 'singles out a particular religion for special treatment.' But presumably any religious group in the same circumstances could receive similar accommodation. It's not that New York state favors Hasidic Judaism. Rather, that it saw people with a serious problem and wanted to help them.

The neutrality standard cited is part of the so-called Lemmon test, established in a 1971 High Court ruling. This holds that governmental action is unconstitutional if it has a religious purpose, primarily advances religion or excessively entangles government with religion.

The test itself is an artificial construct representing the court's current wisdom about the meaning of the First Amendment's 'establishment' clause. Even in light of Kiryas Joel, a majority of justices appears to be moving away from the criteria. In the meantime, the fight continues for some fairness for parents who choose religious schooling. A move is under way to amend the Massachusetts Constitution, in the current Constitutional Convention, to repeal the specific prohibition on state aid to religious schools - a move that would merely bring the state in line with federal law, as determined for better or worse by the Supreme Court.

There are 82,000 students in the state's Catholic schools -- alone. Thousands more attend schools run by Protestant or Jewish denominations. Removing them from the public system saves taxpayers hundreds of millions of dollars annually. Allowing the state to provide some modest aid to these students and their schools would be small recompense.

While the Supreme Court agonizes over how many founding fathers can dance on the head of the establishment clause, out in the real world families are struggling to do what's best for their children. Helping them is a matter of basic fairness.



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