Copyright 1994 News World Communications, Inc.  
The Washington Times
June 30, 1994, Thursday, Final Edition
SECTION: Part A; COMMENTARY; Pg. A20

LENGTH: 1033 words

HEADLINE: Attacking religious accommodation

BYLINE: Bruce Fein

BODY:


Last Monday, the U.S. Supreme Court perversely employed the doctrine of church-state separation as a sword against laudatory government accommodation of religion.

Writing for the majority in Board of Education of Kiryas Joel Village School District vs. Grumet, Justice David Souter decried the creation of a special school district to facilitate the receipt of secular educational services for handicapped Hasidic Jews. But the Constitution should celebrate, not chastise, such enlightened government sensitivity.

Incorporated in 1977 and holding a population approximating 8,500 today, the village of Kiryas Joel is overwhelmingly inhabited by Hasidic Jews. They scrupulously resist encounters with modernity, although seclusion is not mandated by their creed. As Justice Souter elaborated: "They interpret the Torah strictly; segregate the sexes outside the home; speak Yiddish as their primary language; eschew television, radio, and English-language publications; and dress in distinctive ways that include headcoverings and special garments for boys and modest dresses for girls. Children are educated in private religious schools."

A pair of 1985 Supreme Court decisions forced the government to withdraw special educational services for handicapped children of Kiryas Joel provided on private religious school premises. The educational services remained available at public schools outside the village, but were generally shunned by Hasidic parents. Their handicapped children suffered "panic, fear and trauma" from immersion in a public school culture that warred with their own.

In 1989, to accommodate the Hasidic culture, the New York legislature constituted the village as a separate school district with an elected board of education empowered to operate a secular public school system. The district, however, chose to confine itself to a secular special educational program for handicapped children because the nonhandicapped preferred their parochial schools. The school superintendent, a non-Hasidic, was a 20-year veteran of the New York public school system possessing bilingual, bicultural, and special educational expertise. Teachers and therapists resided outside the village, and no religion was smuggled into the purely secular curriculum. In sum, the school district operated without offending even the most ardent church-state separationist.

Justice Souter, however, insisted that the creation of the school district itself affronted the establishment clause of the First Amendment. To reach that astonishing conclusion, he conjured up reasons that might be likened to interpretive thaumaturgy.

The establishment clause inarguably prohibits government from favoring one religion over another, or religious adherents generally over nonadherents. According to Justice Souter, New York transgressed that neutrality by drawing a school district boundary that would inevitably eventuate in Hasidic control of the board of education. But that should have been constitutionally irreproachable. The boundaries were intended to accommodate the special educational needs of handicapped children and Hasidic culture, not to champion or emblazon the Hasidic creed. And it was happenstance that the former would be accomplished through a public school district inhabited virtually exclusively by a particular religious group, a happenstance comparable to the Mormon political juggernaut in Utah that was foreordained when Utahwas admitted as a state. Since government officeholders are required to act with religious neutrality, their religious affiliations should be of no constitutional moment. Indeed, the Supreme Court declared in McDaniel vs. Paty (1978) that constitutionally protected religious freedom prohibits government from handicapping individuals in the electoral process based on their religion or nonreligion.

Justice Souter also faulted the New York legislature for failing to ensure that non-Hasidic groups would be equally accommodated. He fretted: "[W]e have no assurance that the next similarly situated group [to the Hasidic Jews] seeking a school district of its own will receive one." But until such a request is denied, there is no justification for constitutional reproach. Not an iota of evidence suggested the legislature was recalcitrant toward a non-Hasidic supplication during the five years postdating creation of the special school district, or would be so in the future. Nor were the Hasidics politically daunting with their puny 8,500 village population. Roman Catholics would seem to wield substantially more clout.

It speaks volumes, moreover, that the constitutionality of the school district was assailed by citizen-taxpayers, not by a religious adherent or group alleging a denial of equal accommodation. And it is commonplace for government to create legislative exceptions with reference to particular religious practices without anticipating what might be legislatively required in the future by the constitutional mandate of religious evenhandedness. Federal law, for instance, permits the "use of peyote in any form in connection with the religious practices, sacraments or services of the Native American Church." And the National Prohibition Act legalized "wine for sacramental purposes."

If New York, in fact, ever strayed from the constitutional obligation of religious neutrality in establishing special school districts, the activist jurisprudence of Justice Souter would find no difficulty in slaying the heresy. Further, Justice Souter's neutrality worry seems contrived; he nowhere hints that New York's objective could be saved by authorizing an administrative body to create special school districts at request, coupled with an injunction of evenhandedness among religious groups.

Something is rotten in the state of constitutional law when legislatures are instructed to display religious callousness. The sermonizing of Grumet should evoke lamentations, not hallelujahs.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

GRAPHIC: Cartoon, WHAT'S THE BIG DEAL? THERE'S ALWAYS BEEN LOTS OF RELIGOUS ACTIVITY IN PUBLIC SCHOOLS., By Britt/The Morning News-Tribune (CNS Tacoma, '94)

LOAD-DATE: June 30, 1994